HURRICANE KATRINA AND OTHER HAPPENINGS *
By Alan Lee, Esq.†‡
In the wake of Hurricane Katrina, individuals with immigration
cases in the New Orleans area are wondering how it will impact the
processing of their cases. There is unfortunately at the time of
this writing no foretelling what kinds of delays their cases might
suffer, but the good news is that the New Orleans district office
sustained no damage and that all records and files were secured,
and are being transported to the U.S.C.I.S. sub-office in Memphis
at 842 Virginia Run Cove, Memphis, Tenn. 38134, as the New Orleans
office will remain closed for the foreseeable future. A U.S.C.I.S.
press announcement on September 8, 2005, stated that U.S.C.I.S.
offices across the nation stand ready to assist customers impacted
by the hurricane. Our recent experience confirms this attitude as
we spoke with the U.S.C.I.S. National Customer Service Center concerning
the case of one of our clients in New Orleans with a biometrics
appointment who is now in Houston and were informed that he could
appear at any of the three application support centers in Houston
with his notice of appointment and any kind of identification showing
that he was from New Orleans.
On a less dramatic note, the following may prove helpful to other
individuals in their cases:
1 Following the passage of the Real ID Act of 2005 on May 11, 2005,
removing the conditional basis of asylum for individuals with population
control policy asylum grants 1, the U.S.C.I.S. did not
come out with instructions on how conditional asylees should further
proceed with applications for adjustment of status to permanent
residence (I-485s) or to call over their dependents from overseas
(I-730s). The policy vacuum has left many individuals including
attorneys in a quandary of whether to file or not. This law firm
communicated with the Central Office of U.S.C.I.S. earlier and received
the advice that conditional asylees could file for adjustment of
status so long as they had already been in conditional asylee status
for one year. Thus far, it appears that U.S.C.I.S. has had no standard
procedures and we have encouraged the question to be brought up
either before or in a liaison meeting with the American Immigration
Lawyers Association. The Nebraska Service Center further appears
to have accepted some applications for both benefits, rejected some
I-485 filings, and held onto others without accepting or rejecting
the fees. U.S.C.I.S. should come up with a definitive statement
of whether it will demand that conditional asylum status be formally
lifted before either benefit can be filed, or whether it will accept
I-485s and I-730s now as properly filed subject to a condition subsequent
that there is no issue that would keep the applicants from obtaining
final asylum approval. The latter approach is more sensible for
two specific reasons: 1.) At this time, individuals who are being
granted asylum status based on population control policies of the
home country are immediately eligible to file I-730 applications
for their overseas dependents. Why should they be in a better position
than individuals who were granted asylum on the same grounds years
ago? 2.) Conditional asylum status was lifted in the past when a
number became available and new security clearances were completed.
But there now appears to be little reason to require new clearances
as a condition of full asylum approval at the cost of further delaying
this class' right to obtain permanent residence or reunite with
their family members. In order to attain conditional asylum status,
security clearances were run in the past on all cases, and so U.S.C.I.S.
already knows that the vast majority of the conditional asylees
will not trigger security hits. Further U.S.C.I.S. will conduct
security clearances again as soon as these aliens apply for permanent
residence. The great majority of conditional asylees have already
spent one year in asylum status and would be immediately eligible
to apply for permanent residence. Under the present system of adjustment
of status, requests for fingerprints are generally sent out within
one month of I-485 application filing. Thus, there is no compelling
reason to deny individuals the right to file both I-730 and I-485
applications at this time.
2 More than an inconsiderable number of individuals filing I-485s
or N-400 applications for naturalization have been puzzled to receive
a notice of canceled interview and have wondered whether there was
something wrong with their cases. U.S.C.I.S. has stated that interviews
are canceled for a variety of reasons and that many of them are
unrelated to the merits. Reasons include bounced checks, no related
"A" file (U.S.C.I.S. opens "A" files on anyone
applying for permanent residence or various other benefits or coming
to the attention of the agency for other reasons but sometimes does
not have all related files pertaining to the individual in time
for an interview), pending IBIS (Interagency Border Inspection System)
or security check clearances, etc.
3 On September 28, 2005, the fee for appeals and motions to reopen
and reconsider with U.S.C.I.S. rises from $110 to $385. The fee
increase does not affect cases being appealed to the Board of Immigration
Appeals, for which the appeal fee will remain $110. The fee increase
did have a beneficial effect in forcing U.S.C.I.S. to reevaluate
its April 23, 2004, RFE (referral for further evidence) memo under
which RFEs were not required for every case prior to adjudication
and situations were defined wherein adjudicators could deny applications
or petitions without issuing RFEs. That policy resulted in a slew
of unjustified and poorly reasoned denials, and when U.S.C.I.S.
proposed the fee increase, many individuals pointed out that it
would be unfair for the agency to ask its customers to pay $385
to reverse decisions which were indefensible. The policy was rescinded
in a memorandum dated February 16, 2005, under which the norm of
RFEs and notices of intent to deny (NOIDs) was established with
the concomitant commitment that U.S.C.I.S. officers are only to
deny without an RFE where there is statutory ineligibility for the
benefit sought.
4 U.S.C.I.S. announced in a Service Center Operations teleconference
on August 8, 2005, that where employment based cases have been transferred
from service centers to local district offices, employment authorization
(I-765) and advance parole (I-131) applications should be filed
with the service center that had original jurisdiction over the
I-485. This clarification of jurisdiction is welcome news to all
as there has been confusion in the U.S.C.I.S. over whether jurisdiction
lies with the service centers or the National Benefits Center (NBC)
which handles the pre-processing of cases for the local district
offices. Local offices had been advising individuals to file with
the NBC; the NBC had been saying that jurisdiction for these applications
remained with the original service center; and applications sent
to the original service centers had been transferred to the local
district offices. Now hopefully everyone will be on the same page.
5 Both the Texas and California service centers have recently confirmed
the nunc pro tunc principle to rectify cases that were mistakenly
rejected. In the American Immigration Lawyers Association (AILA)
/Texas Service Center liaison minutes of August 1, 2005, item 4
concerned wrongful rejection of an I-485 application for a China
born applicant who claimed cross chargeability to the country quota
of Ethiopia as his dependent spouse was born in that country and
applying for adjustment of status at the same time. The applications
were rejected right before July 1, 2005, when EB-3 visas were still
available except for natives of China, India and the Philippines.
On July 1st, EB-3 visas for all countries became unavailable except
for Schedule A cases. After advising AILA members to flag I-485s
requesting cross-chargeability with large bold lettering, the Service
Center stated that cases that had been wrongfully rejected should
file a request for nunc pro tunc acceptance and a backdated "received"
date based on the filing having been "previously rejected in
error." The applicant should include proof of the timeliness
of the previous filing attempt. Item 4 of the AILA/California Service
Center liaison meeting of August 24, 2005, asked the similar question
that if a case was wrongly rejected by the mailroom and as a result,
the individual was unable to refile the case due to quota backlogs,
did the California Service Center have discretion to take the petition
retroactively. The service center affirmed the principle that it
had discretion to take the I-485 retroactively if the case was incorrectly
rejected. As the service centers are prone to making mistakes because
individuals in the mailrooms are not experienced officers, it is
good to hear two service centers openly acknowledging their authority
to accept I-485s even where the quota is no longer available so
long as it is proven that they originally wrongfully rejected timely
submitted applications.
6 The California Service Center is presently alarming I-130 (petition
for alien relative) petitioners by sending out requests for information
which do not define what is missing from the original petitions
but request the petitioner to submit any from a long list of items
which may not have been originally submitted with the filing. It
appears that the California Service Center sends out these all inclusive
letters at least 90 days before the I-130 is slated to be worked
upon by an officer to reduce the need for sending an RFE at a later
point. But if an officer sees that something is missing from the
I-130 while adjudicating the petition later, he/she is supposed
to send out an RFE anyway.
7 Customs and Border Protection (CBP) recently acknowledged that
inspection errors can be corrected at any deferred inspection location,
and not just the one located closest to the port of inspection at
which the error occurred. An example of inspection error commonly
seen is a short date on an I-94 entry/exit card in which the nonimmigrant
H-1B petition is valid for two or more years, but the I-94 card
of the H-4 dependent is marked with validity for only a few months
to match the length of the visa in the passport. (Individuals are
supposed to be given the period of time on the petition and not
the visa as long as there is sufficient time remaining on the passport).
This information will assist many individuals with inspection errors
who enter the U.S. at international airports which are far removed
from their ultimate destination, e.g. individuals who land in Los
Angeles to see the sights and visit relatives before traveling on
to San Antonio. The question was brought up by AILA since there
were many complaints that CBP officers at deferred inspection stations
were under the belief that an individual had to go to the port where
the error was made in order to have an I-94 corrected despite an
updated section of the Inspectors Field Manual that allows individuals
to seek a correction at any deferred inspection location.
1 Under prior law, grants of political asylum were
conditional for applications based upon past persecution or a well-founded
fear of persecution because of population control policies of the
home country. The conditional basis was lifted only after a number
(capped at 1000 per year) became available. On December 16, 2004,
the Department of Justice estimated that most individuals who had
been conditionally granted asylum by the immigration courts or U.S.C.I.S.
on or before September 15, 2000, and whose identity, background,
and security checks had been updated and cleared, had been notified
of eligibility for final asylum grants. It further estimated that
because it had more than 9000 asylum applicants on the waiting list,
those who were granted conditional asylum during fiscal year 2004
would have to wait approximately nine years to obtain full asylum
benefits.
* This article was written before the forming of Hurricane Rita
threatening inhabitants of Texas.
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