DEVELOPMENTS ON LEGALIZATION, INFOPASS, VISA REVALIDATIONS, I-130 PETITIONS AND H-1B GAP CASESPart 2 of this two-part article discusses U.S.C.I.S.'s 7/16/04 notice to adjudicate I-130 relative petitions when the priority dates become available and its 7/23/04 notice that it will allow F-1 and J-1 students whose statuses expire prior to October 1st but whose H-1B petitions have been received by the U.S.C.I.S. by 7/30/04 to remain legally in the U.S. during the gap of time in which their statuses expire and the time that new H-1B cap numbers become available in October. 4. U.S.C.I.S. has just announced by public notice on July 15th that it will process I-130 petitions for alien relatives as visa numbers become available. Very few details were given in the notice. We are ambivalent about the merits of this proposal for the following reasons: 1) In many ways, this notice merely puts into effect what has generally been the practice of the U.S.C.I.S. today. Immediate relative cases (spouses, parents and children under the age of 21 and unmarried of U.S. citizens) which do not require a priority date to be cleared are processed faster than other classes of cases. For example, as of July 21, 2004, immediate relative cases in the Vermont Service Center which were filed as of April 22, 2004, are being adjudicated; Nebraska Service Center October 4, 2002; Texas Service Center April 18, 2003, and California Service Center November 1, 2003. Other classes of family based cases which have a backlog in priority date to be cleared prior to visa issuance are being processed in the Vermont Service Center between January 19-August 2, 1999, Nebraska Service Center April 13-June 22, 2001, Texas Service Center January 4, 1999-May 7, 2001, and California Service Center April 6, 1998-July 19, 2001. So it is difficult to see what the new prioritization will accomplish unless U.S.C.I.S. intends not to tackle a category like F-4 siblings of U.S. citizens which currently has a backlog of 12 years until that priority date is close. Unless this is a short-lived program, such a move will antagonize petitioners who will not understand why a preliminary petition must take over 10 years to adjudicate. The bright side of such a long adjudication process is that it may help to preserve benefits for children under the Child Status Protection Act (CSPA ) who might otherwise ageout during the many years of waiting. That is because the time required for adjudication of an I-130 petition is deducted from the overall age of the child when considering whether the child is eligible to be considered as a minor for immigrant visa purposes. 2) The U.S.C.I.S. will have to ensure that adjudications are done not at the time that the priority dates become available, but months beforehand, especially for the beneficiaries who will be consular processed. The July 15th notice only states that "U.S.C.I.S. will adjudicate your Form I-130 prior to visa availability (or within six months if a visa is immediately available upon filing)", but does not say how far in advance. This is very important because of the large difference in processing methods between the U.S.C.I.S. for adjustment of status and U.S. consular posts for immigrant visa interviews. For aliens applying in the States, I-485 applications for adjustment of status applications cannot be submitted to the U.S.C.I.S. until priority dates are current; aliens applying overseas for consular appointments begin preliminary processing months before the priority dates become current so that they can be interviewed in the month that the priority dates clear. The latter group would obviously be most prejudiced by U.S.C.I.S. adjudicating their I-130s close to or at the time that the priority dates become current. 3) The U.S.C.I.S. in implementing this procedure would have to become more uniform and strictly adhere to a policy of swiftly upgrading or otherwise changing preference categories when permanent resident petitioners become U.S. citizens. In most cases, the changing of preference category through the petitioner's naturalization will speed up the beneficiaries' cases as the priority date of the new category will usually be faster than that of the old. At this time, U.S.C.I.S. headquarters does not have a uniform procedure under which petitioners can rapidly have their I-130 petitions changed in category and it has been left up to the service centers to handle the changes in the way that they best see fit. As far as can be seen , the California Service Center has developed the best solution through implementing a fax notification system through which individuals can quickly have such preference categories changed. 5. The U.S.C.I.S. finally published its long awaited H-1B gap notice on July 23rd in an unfortunately ludicrous procedure. Gap cases are those in which organizations file H-1Bs ( petitions for specialized workers holding four year degrees or their equivalent for positions requiring such knowledge) to begin in the next fiscal year (beginning October 1st) because the H-1B quota has been exhausted for the present year in situations where F-1 or J-1 students' statuses will expire before October. In its notice, the U.S.C.I.S. is only giving organizations one week until July 30th to have their gap cases received by the agency. The deadline is comical because it places intense pressure upon organizations, attorneys and individuals to coordinate and send all the paperwork within a very short period of time so that U.S.C.I.S. can receive the paperwork by next Friday. To comply with this timeline, organizations which are willing to wait until October 1st for the aliens' services after their present statuses expire might be reduced to filing barebones petitions or electronically filing the cases. There seems to be very little point for such an arbitrary deadline as it does not serve any purposes other than to reduce criticism of the agency and the number of applications that the U.S.C.I.S. will be receiving from gap cases. The notice further says nothing concerning gap cases which have already been denied for change of status in the States. These are some of the more interesting recent developments in immigration law and procedure although there are undoubtedly others which are of equal or surpassing importance. † The author is a 25 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 1981 case with Ronald W. Freeman, Chavan v. Drysdale, 513 F.Supp.990 (NDNY 1981), encouraged the INS to change its 3 year maximum stay period for L-1 specialized knowledge personnel, and his 1992 correspondence with John Cummings, then Acting Assistant Commissioner for Refugees, Asylum and Parole, on the fate of asylees’ children who age out (69 Interpreter Releases, July 13, 1992), has been widely cited by others in the field. Readers may visit Mr. Lee’s website at www.alanleelaw.com. ‡ This article © 2004 Alan Lee, Esq.
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