Community Relations Seminar Featuring U.S.C.I.S. Associate Director for Domestic Operations Discusses Many Topics of Interest

By Alan Lee, Esq.

Michael Aytes, the Associate Director for U.S.C.I.S. Domestic Operations since February 2006, was invited as the featured speaker at the Community Relations Seminar at the New York City district office of U.S.C.I.S. on February 29, 2008. Mr. Aytes is responsible for the management and oversight of U.S.C.I.S. operations within the United States and its territories, as well as associated policy management. His host was the District Director of the New York District, Andrea Quarantillo, who assumed the responsibilities of District Director in November 2006 and manages a staff of 500. The topics discussed on that day by both of them with input from New York District supervisors and section chiefs and questions from members of the public was enlightening on issues having both national and New York significance.

1 Naturalization

Mr. Aytes stated that U.S.C.I.S. had received 1.4 million naturalization applications in 2007, twice the normal amount. 460,000 applications were received in July 2007, where the typical number of applications is 60,000 per month. He emphasized the importance of attending an interview by stating that if someone does not show for an interview, someone else loses. On procedures, applicants should be prepared for surprises including naturalization interviews being scheduled for Saturdays, evenings, or in other locations. The goal is to drop the time for naturalization to five months by 2010.

Ms. Quarantillo stated that New York City is not planning to schedule interviews on Saturdays or evenings and that if the District went to extraordinary measures, it would reach out to the religious communities for the holidays. She also noted that the New York District is interviewing naturalization applicants for June and July cases at present, but may be there for a long time.

2 Use of old fingerprints

U.S.C.I.S. has come under criticism for making applicants for benefits retake fingerprints under its policy that fingerprints are only good for 15 months since fingerprints do not change over time. Mr. Aytes said that long-term, the U.S.C.I.S. would use the old prints, but that now there is no capability if the fingerprint checks expire.

3 Filing I-90 applications when filing for naturalization

In the past, the standard advice by U.S.C.I.S. has been that if the green card still has six months validity by the time that a naturalization application is filed, applicants do not have to file I-90 applications to replace the permanent residence cards. We have generally given that advice and naturalization applicants whose cases extend past the expiration date of their cards could usually obtain temporary stamps of permanent residence at the local district offices of U.S.C.I.S. We were therefore surprised by Mr. Aytes suggesting that applicants should file for a replacement card and that the law requires that aliens have a valid card with them. He said that it was a risk not to have one, especially if the permanent resident needed to travel in the meantime. He cautioned that applicants should not wait for an emergency.

Ms. Quarantillo did note that the New York District could handle persons needing to travel through the Information Unit and could give a temporary stamp of permanent residence.

4 Advance parole and the 3/10 year bars

Mr. Aytes was asked by an audience member why U.S.C.I.S. would grant advance paroles to those individuals who were illegally in the United States, and upon their taking the advance parole and traveling outside the U.S., find themselves under the 3 or 10 year bar (for most) for staying in the U.S. illegally for 180 days or one year after April 1, 1997 respectively. He stated that U.S.C.I.S. would not pre-adjudicate the cases and would grant the advance paroles - that applicants had to make their own informed decisions. I asked Mr. Aytes a follow-up question of whether he would consider an exemption to those who received advance parole papers which did not have a warning legend on them (as was the case with advance parole papers for a considerable number of years after 1997). To that, he replied that the policy would remain the same and did not attach much importance to the presence of a warning legend.

5 I-130 revocation cases

Mr. Aytes was asked to respond to the slowness with which I-130 family based cases which are shipped back to U.S.C.I.S. for revocation purposes are being handled. He admitted that work needed to be done with the inventory control and the production processes, and that U.S.C.I.S. is looking at what the right solution should be.

6 Humanitarian reinstatement cases

These are cases in which the petitioner passes away following the I-130 petition approval and are eligible for humanitarian reinstatement under the Family Sponsor Immigration Act of 2002. Mr. Aytes promised that U.S.C.I.S. would look into the situation upon complaint that no receipt numbers are given and it was very difficult to know what was going on with the cases.

7 Child Status Protection Act

Under the CSPA, children who are not allowed to immigrate with their parents because they cannot qualify as children under the age of 21 even under the counting rules of the CSPA are allowed to take the priority date of their parent's case when they later attempt to immigrate under the "appropriate category". In current practice, the old priority date is requested when the parent immigrates and sponsors the aged out children under a new I-130 petition. To my observation that U.S.C.I.S. appeared to be holding most of these petitions without adjudication and had recently approved one of my cases giving only the new priority date as of the date of I-130 filing and not the old priority date, Mr. Aytes invited me to send him the particulars of the case.

8 K-4 aliens over the age of 18 at the time of their parent's marriage with the
U.S. citizen stepparent

When a U.S. citizen marries a foreign national, he/she is allowed to petition for that individual under K-3 non-immigrant visa status instead of an immigrant visa if he/she wishes the person to come to the U.S. faster. The alien's children under the age of 21 can also come to the U.S. under K-4 classification. The difficulty is with those children who were already 18 at the time of the marriage. Under the law, no step-relationship is created with the U.S. citizen, and so this class of individuals is not allowed to adjust status to permanent residence under the present regulation with their natural parent. Mr. Aytes had written a memorandum in 2007 stating new U.S.C.I.S. policy that would allow children in similar situations in K-2 status to adjust to permanent residence. (The child of a K-1 fiancée is classified K-2. In a K-1 case, the parties are not yet married and the K-1 is being petitioned as the fiancée of a U.S. citizen). I asked Mr. Aytes whether he would consider allowing K-4s in this situation to adjust status in the same manner that K-2s are now allowed to do so under his recent memorandum. He said he did not think that he could do it and that if he could have done it, he would have. I also asked if he had had a chance to see the correspondence which I had sent him previously on the subject. He said he had not seen it and I asked whether I could include them in the papers I would be sending him. [Updating this after forwarding the correspondence, I received a call from a policy officer in the Domestic Operations Directorate of U.S.C.I.S. during which we discussed the subject further and he hinted that U.S.C.I.S. would be taking steps in the next months to afford relief to some members of this class].

These were some of more interesting topics brought up in the seminar although there were many others such as the procedure to follow for persons from Middle Eastern and other countries who did not register as required under the NSEERS program; U.S.C.I.S. assistance to paraplegics applying for naturalization; U and T visa processing complaints; I-824 follow to join applications being handled locally instead of the service centers; treatment of I-130 beneficiaries in removal proceedings; I-360 religious cases and fraud; and the handling of humanitarian parole cases, etc. The seminar was especially informative given the frank address and responses of both Mr. Aytes and Ms. Quarantillo.

 


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 2008 Alan Lee, Esq.

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.