News Update - April 16, 2012

What You Now Have to Pay for NIV/IVs; Help for CIS Wrongful Denials for Failure to Answer Notices or Appear at Biometrics Appointments; Longtime LPRs with Crimes Before 4/1/97 May Be Able to Take Trips Outside Country, Says Supreme Court.

A.   The below schedule of most of the new fees charged by the State Department for both non-immigrant and immigrant visas effective April 13, 2012, is set below as there may be some confusion with the way that the fees were stated in the official notice: 

It appears from the first few fee bill packages that our office has received from the Department of State that it has also dropped the $74 visa security fee. 

The State Department clarified that it would not refund any fees paid at the old higher rate, and that non-immigrants who already paid the lower rate have until July 12, 2012, to have the interview.  For any interviews after that date, applicants will be invoiced for the difference between the two rates.

B.   An April 4, 2012, press release from U.S.C.I.S. states a number of situations in which applications or petitions denied for no fault of applicant/petitioner and due to the agency's own lack of coordination can now be remedied on an expedited basis through the National Customer Service Center (NCSC) at 1-800-375-5283 with a request that an expedited service request be created. The release covers the following situations:

1. Denial based on failure to respond to a request for evidence (RFE), notice of intent to deny (NOID), or notice of intent to revoke (NOIR), and there is documentary evidence of a response which U.S.C.I.S. received on a timely basis. 
2. Denial based on failure to respond to an RFE, NOID, or NOIR, and U.S.C.I.S. determines that there is evidence in its system that the RFE, NOID, or NOIR was not sent to the petitioner/applicant or, if there is a valid G-28 authorization of representation on file, to the attorney or representative of record. 
3. Denial based on failure to respond to an RFE, NOID, or NOIR, or failure to appear at a biometrics appointment, and U.S.C.I.S. determines that there is evidence that the applicant properly submitted a change of address prior to issuance of the RFE, NOID, or NOIR or biometric appointment notice, or sent the papers to a previous or improper address. 
4. Denial based on the applicant's failure to appear at the biometrics appointment, and there is documentary evidence that the applicant attended the appointment or made a timely valid request that it be rescheduled.

The release is a well-intentioned step by U.S.C.I.S. to rapidly solve some of the situations that have bedevilled it through its own lack of coordination.  Myriad are the number of times that cases are denied for all of the above reasons.  The second and fourth situations are interesting as the Service is finally recognizing in the second that even though it may have sent the paperwork to the petitioner or applicant, it is still in the wrong in not forwarding the paperwork to the recognized attorney or representative of record.  The Code of Federal Regulations requires the Service to send all paperwork including RFEs, NOIDs, or NOIRs to attorneys or representatives.  The fourth is interesting as the Service is qualifying the timely request for rescheduling by also requiring that it be "valid".  Is a valid request one which requires a great reason and is a request invalid if the petitioner/applicant is asking for a second or third rescheduling? There appears to be too much leeway for a Service officer to decide what is a valid reason.  And as long as the U.S.C.I.S. is working in this vein, it should also consider providing an expedited redress procedure for petitioners or applicants who have made timely requests for rescheduling of appointments for interviews at its district offices and received wrongful non-appearance denials.

C.   Longtime residents who have been afraid to travel outside the United States because of excludable criminal convictions incurred between the time of their obtaining permanent residence and before April 1, 1997, may now find that they are able to travel abroad if their trip is brief, casual and innocent. This comes with caveats, however, and affected individuals should pay close attention to the particulars of their cases.  The Supreme Court in Vartelas v. Holder on March 28, 2012, held that the present law which took effect on April 1, 1997 (under which lawful permanent residents who take any trip out of the country are considered to have made an entry regardless of how short or innocent the travel and are thus subject to the inadmissibility rules) is not retroactive.  The Court had earlier declared an exception to the doctrine of "entry" in its 1963 ruling of Rosenberg v. Fleuti, the reasoning of the Court being that for LPRs, trips outside the U.S. which were brief, casual, and innocent did not count as entries at all.  However, note that the Court's new ruling has no effect upon convictions occurring on or after April 1, 1997.  In addition, the fact that no entry is considered made does not mean that an individual is not deportable from the United States.  Under U.S. law, there are grounds of inadmissibility (formerly exclusion) and removability (formerly deportation).  An alien can conquer the grounds of inadmissibility like Mr. Vartelas who only took a casual week-long trip to Greece and was previously convicted of a crime involving inadmissibility without a removability counterpart, but if the grounds of deportation/removability still remain, the alien could still be charged under the deportation/removability section rather than the inadmissibility one. Then the permanent resident would come before the immigration court in which he/she would be putting forth defenses such as a waiver application for the crime under INA section 212(h) or cancellation of removal under section 240A.  It should also be noted that past precedents construing the Fleuti doctrine have had varying administrative and judicial results where the length of time (one month's trip in one case was held too long) and the purpose of the trip while innocent at the time of departure was altered while away to engage in illegal activities.

† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. 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 Interpreter Releases, Immigration Daily, and 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 Bush Administration in the Intelligence Reform Act of 2004.

‡ This article © 2012 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
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