HIGHLIGHTS AND LOWLIGHTS OF 2004 (Part II)Our next objection is to U.S.C.I.S.' solution to the problem of pending adjustment of status family based cases by expediting one class of new filers so that they are interviewed within 120 days of filing while others languish for over two years in some cases. This was happening in New York in which U.S. citizen spouse cases were being filed and interviews conducted within 120 days while the district processing time chart showed that it had only reached August 2002 for its other cases. Although the pilot program was summarily discontinued without notice in New York on January 27, 2005, it continues on an indefinite basis in Los Angeles, Miami, Chicago and Dallas. Attempts to expedite cases should always begin with those which have waited the longest, not those that are just being filed today. The DOL had the right idea in addressing its backlog through the FIFO method, while U.S.C.I.S.' employment of the LIFO (Last In First Out) approach raises hard feelings and questions of basic fairness among those who filed long ago only to be bypassed by current filers. In attempting to reduce the backlog of adjudications, U.S.C.I.S. issued two memos in 2004 encouraging its examiners to make final decisions on applications in many circumstances without sending referrals for further evidence (RFEs) to petitioners in order to clarify issues. In one memo, William Yates, Associate Director, Operations, for U.S.C.I.S., stated that the agency could issue denials without RFEs where there is evidence of clear ineligibility, where the record is complete and CIS believes that the applicant has not met the burden to establish eligibility for the benefit, or on a discretionary basis where the evidence raises questions regarding eligibility or does not fully establish eligibility. In the second memo, Mr. Yates stated that where petitioners in employment based cases submit annual reports, tax returns or audited financial statements, the CIS can deny the petition and does not need to send out an RFE. We believe that CIS decisions will be more prone to egregious errors as examiners feel pressed to make decisions instead of pending cases for evidence that could explain away the doubt in the examiners' minds. I note that we have been on the horns of this policy lately, with U.S.C.I.S. denying without RFEs an overaged child's case who was clearly entitled to the benefits of the Child Status Protection Act and a notable musician's I-140 petition who the agency did not believe was extraordinary enough. The final nail that U.S.C.I.S. wishes to drive in to shut the door tightly on cases that it denies is its November 30, 2004, proposed regulation to raise fees for appeals or motions to reopen or reconsider from their present level of $110 to over triple the amount, $385. The American Immigration Lawyers Association has rightfully reacted with indignation to the request for fee increases, calling for any fee increase to be tied to a withdrawal of the no RFE policy. If and when the proposed rule is implemented and if there is no change in the RFE rule, petitioners will find themselves having to pay a very sizable fee for appeals or motions of often baseless U.S.C.I.S. decisions. A cavalier response such as "Those individuals who feel that the decision constitutes gross error can file a request to have U.S.C.I.S. reconsider the ruling on Service motion without fee" is nonsensical as the agency on most occasions does not make corrective decisions before the deadline to file appeals or motions has already passed. 4.) Treatment of F-1 and J-1 student applicants -- For this, we give a collective "F" to the Bush administration, and include the U.S.C.I.S., CBP, State Department, and Social Security Administration. The New York Times reported in its December 21, 2004 , article, "U.S. Slips in Attracting the World's Best Students", that foreign applications to American graduate schools declined 28% in 2004 and enrollments of all foreign students in undergraduate, graduate and post doctoral programs fell while university enrollments have been surging in England, Germany and other countries. The U.S. Chamber of Commerce had earlier estimated that the number of foreign students dropped by 8.5% between 2001-2003. Foreign students are very beneficial to this country including the number who remain and contribute their knowledge and skills to the building of the country and those who return home and influence their countrymen's views of the U.S after having had a positive educational experience in America . Most students while here contribute heavily to the U.S. economy ($13 billion annually as per the New York Times). Yet this country is still stuck in the fog of 9/11 in which students are perceived as security risks and there is little regret about losing many of the best and brightest to universities in other countries. Unfortunately this is extremely shortsighted, and fails to take into account world realities in which there is heavy competition now and in the future for the students and the future benefits that they will provide to the countries in which they settle for schooling. Many countries of the world including the U.S. are facing a crisis of population in which the younger generations will not be able to replace the present aging work population. These students will be the gold standard of the 21st century. Yet we treat them no better than flotsam on the open ocean beginning from the U.S.C.I.S.' non-refundable SEVIS student fee of $100 to even obtain I-20 or DS-2019 student eligibility forms - which fee is non-refundable even if the application is denied, to the CBP's multiple confusing announcements and deadlines in 2004 for machine readable passports and biometric passports, to the Department of State's consular officers having an ingrained culture of "no" to student applications (the New York Times article quoting Princeton University's president that Chinese students are getting heightened scrutiny and she had not received an answer that made sense when she asked for the rationale), to the Social Security Administration's recent regulation telling foreign students that it will not give them social security numbers to obtain drivers' licenses, apply for bank accounts or purchase or rent houses or apartments. Unless this attitude is remedied soon, we will find that we have won the security battle on students, but lost the war for the future well-being of the country. 5.) InfoPass -- The InfoPass system of U.S.C.I.S. to set up appointments by which individuals can avoid long lines at the district offices of U.S.C.I.S. rates an "A-". Instead of having people queue up in the cold and dark many hours before the opening of the agency's local office, this system allows computer access through going online to www. uscis.gov and clicking on InfoPass on the homepage. The system directs the user into possible appointment scheduling for all U.S.C.I.S. districts. Infopass is a great concept, but because it began in early 2004, the agency is still working out bugs in the system. Previously in New York, U.S.C.I.S. service centers instructed individuals whose I-751 (removal of conditional basis of resident status) applications had been approved to go to the district office on any day to complete processing and individuals whose I-485 (adjustment status to permanent residence) applications were approved to appear at the local office on a certain day of the week to complete processing, but upon traveling to the district office, these applicants were turned away and instructed to make InfoPass appointments. Similarly families with multiple members showing up with one InfoPass appointment were turned away and instructed to obtain multiple InfoPass appointments. These problems along with others have since been worked out in various ways. However, problems remain, and one that the agency may consider taking steps to resolve is the suddenly burgeoning business of self-styled entrepreneurs who position themselves to sell InfoPass appointment slots by immediately grabbing as many InfoPass appointment slots as they can as soon as the slots open on the U.S.C.I.S. website. As always, we had hoped to give all "A's" for 2004, but
the actions of the various agencies dictated a wider range of scores.
Optimistically the ratings will be higher when 2005 closes and we
write our next review of agencies in the immigration field. † The author is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. ‡ This article © 2005 Alan Lee, Esq.
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