RECENT DEVELOPMENTS IN IMMIGRATION PROCEDURES AND LAW
By Alan Lee, Esq.†‡
This will be the first in a continuing series
of columns devoted to developments large and small in current immigration
procedures and law. It will hopefully be of assistance in answering
questions by aliens and their organizations that must deal with
the various agencies governing the immigration and naturalization
procedures.
1. As part of the immigration service's (U.S.C.I.S.)
move to cut down its backlog of pending cases, it has issued a memorandum
that the U.S.C.I.S. can now issue denials without asking for further
evidence in situations where there is evidence of clear ineligibility
for the benefit; or where the record is complete and the U.S.C.I.S.
believes the applicant has not met the burden to establish eligibility
for the benefit. Requests for further evidence would only be needed
where initial evidence was missing; and in other situations would
be discretionary where the evidence raises questions concerning
the eligibility or does not fully establish eligibility for the
benefit sought.
2. A second memorandum by the immigration service to reduce the
backlog states that where an extension petition (mainly relating
to H-1B specialty worker or L-1 intracompany transferee) has been
filed, the prior adjudicator's decision on the earlier petition
approval is to be given deference unless 1.) there was material
error with regard to the prior petition approval; 2.) a substantial
change in circumstances has taken place; or 3.) there is new material
information that impacts on the eligibility. Adjudicators can also
revoke for fraud or misrepresentation.
3. A third memorandum to reduce the backlog states that for employment
based cases involving a petitioning organization, that organization
must submit an annual report, tax return, or audited financial statement
as evidence of the organization's ability to pay a required wage.
If the evidence is missing, adjudicators at the U.S.C.I.S. are to
send out a request for further evidence. If the record is complete
with one of these three documents, and the U.S.C.I.S. does not believe
that eligibility has been established, the adjudicator can deny
the petition and does not need to send out a request for further
evidence. If petitioners send in other evidence instead of one of
the three required documents, it appears that the U.S.C.I.S. will
either accept the evidence or send a request for further evidence.
The memorandum instructs examiners to approve on the issue of ability
to pay where the net income is equal to or greater than the wage
to be paid; or where the net current assets are equal to or greater
than the wage to be paid; or where verifiable evidence shows that
the petitioner is not only employing the beneficiary, but has also
paid and is currently paying the proffered wage. Readers should
note that the memorandum says nothing about the ability to pay having
to be shown at the time that the labor certification application
was originally filed if such was the basis for the employment based
petition.
4. The impetus behind these memos has been pressure from Congress
to bring down the backlog of cases at the U.S.C.I.S. to six months
for all applications. The agency does not believe that it can reduce
the backlog if U.S.C.I.S. examiners are continually sending out
requests for further evidence and delaying adjudications of pending
applications instead of closing them. As of March 2004, the average
time nationwide to adjudicate the more common immigration benefits
were as follows: 35 months for I-130 immigration petitions for alien
relatives, 11 months for I-131 applications for reentry permits,
11 months for I-140 immigration petitions for alien workers, 23
months for I-485 applications to adjust status, and 14 months for
N-400 applications for naturalization.
In looking over the memoranda, the first one is absolutely disfavorable
to aliens and organizations and hopefully can be ameliorated in
the near future. The second memorandum concerning deference to prior
adjudications is helpful, but does not go as far as many would have
hoped. Prior guidance by legacy INS (which was unfortunately not
followed by its field offices) stated that issues that had been
determined in prior adjudications should not be reversed in the
absence of gross error or fraud. The new standard of material error
gives more ground to the U.S.C.I.S. to deny cases. The third memorandum
tracks the spirit of the first in encouraging examiners to make
decisions whenever possible without asking for more evidence - generally
a disfavorable approach for aliens - but does instruct examiners
to grant on the issue of organizations' ability to pay in limited
circumstances.
Overall, this means that the U.S.C.I.S. will be denying more cases
in the future than it has in the past in the interest of catching
up on its backlog, and aliens and their organizations that file
cases with the agency should put together their best cases prior
to submission to the immigration service. There is nothing more
disconcerting for aliens and their organizations than to receive
denials and have to go through motions to reopen/reconsider or appeals
to resolve situations that could have been easily avoided by more
careful preparation.
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