Details Leaking Out on July Visa Chart Fiasco Show Extraordinary and Legally Questionable Steps by U.S.C.I.S. to Exhaust Visa Numbers to Protect Fee Hike Collections

By Alan Lee, Esq.

More details came to light today as the New York Times reported that immigration officials said that employees were put to work both days last weekend at service centers in Texas and Nebraska, and that 25,000 applications were processed in the final 48 hours before Monday's deadline. The newspaper also reported that security clearances required by the FBI in some cases were not entirely completed, but the agency approved applications when it was certain that the process would be completed very shortly.

The actions of U.S.C.I.S. are highly reminiscent of its handling of naturalization applications which were granted during the Clinton Administration without completed security checks, and caused an uproar by Republicans that persons with criminal backgrounds were being approved. In this period after 9/11, such actions by the agency take on even greater significance as failure to obtain complete security clearances can endanger the national security of the country. It should be noted that the U.S.C.I.S. routinely defers adjudication on approximately 10% of its cases because of lack of FBI clearance, and has a standard message to inquirers that "Once the file has been cleared by the FBI, the file will be adjudicated. The Service has no control over how long it takes the FBI to clear the case." Some applicants have unsuccessfully pleaded and attempted to go through all channels beseeching the agency to approve their cases for over four years when security has not completely cleared. So it is difficult to understand U.S.C.I.S.'s sudden desire to approve cases which have not been entirely cleared by the FBI.

The New York Times article also reveals that since 2000, a total of 182,694 work based visas had not been given out because U.S.C.I.S. had fallen behind in processing applications. This means that given the statutory authority to approve 140,000 numbers per year, the agency in the seven years has averaged 113,901 completed cases per year, or 9,492 approvals per month. The Department of State also released figures consistent with these rates of approval in its July 2, 2007, notice to U.S.C.I.S., "Authorizations for Employment Cases", comparing CIS requests for visa numbers during June and the first few days of July with 66,425 requests during the first eight months of the fiscal year, or a rate of 8,303 requests per month. For the agency to complete enough cases so that the Department of State could say that sudden backlog reduction efforts by Citizenship and Immigration Services offices during the past month had resulted in the use of almost 60,000 employment numbers constitutes a phenomenon attributable solely to overtime work at the service centers during the last weekend and the cutting of corners on security as seen in the New York Times article.

The article also states that U.S.C.I.S. officials said that they were surprised by the Department of State's action, and that they immediately advised the Department that they had already finished approving enough applications to use 60,000 visas of those offered. It also quoted Michael Aytes, director of domestic policy operations, as stating that the agency already had more than enough applications and that it expected to complete them in time to use the visa numbers. The first assertion if accurately quoted is legally incorrect as U.S.C.I.S. contacted the Department of State before or as soon as the visa chart was released, at which time the cases were not approved as cases by law are not approvable until all steps including security clearances have been completed. The second assertion by Mr. Aytes is irrelevant as the number of cases U.S.C.I.S. is holding has no impact on the visa chart since the Department of State only allocates visa numbers when U.S.C.I.S. finishes the cases and requests visa numbers. Thus even if U.S.C.I.S. is holding 2 million employment based cases, the visa bulletin can still be open if U.S.C.I.S. has not completed the cases and requested visa numbers.

In addition, even if U.S.C.I.S. had more than enough cases and expected to approve them in time for use during this fiscal year, what was the rush in approving so many cases since it had until September 30th (the end of the government fiscal year) to use up all the numbers? In other times, the agency would have welcomed extra revenues from individuals who could file I-485 adjustment of status cases. The rush to use the numbers by the end of the month and to rollup the welcome mat can only be attributed to U.S.C.I.S. anger that all the applicants filing in July would be beating the U.S.C.I.S. fee hike on July 30th which will raise fees for a typical family of four from $1,605 to $4,105, an increase of $2,500, or 255%. (See article, "Is Money Behind U.S.C.I.S. Move to Have Department of State take Unprecedented Action to ' Update ' July Visa Chart?", )
The author has conjectured that the amount at stake is at least $250 million. Ibid.

As the fallout continues over what must now be termed a scandal, one can only hope that reasonable minds can reverse course as further details only promise to make the episode look uglier and promote further firestorms of criticism.

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. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2007 Alan Lee, Esq.


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