IMMIGRATION NOTES
By Alan Lee, Esq.†‡
I looked over some old notes, and thought that some of them might
be of interest to the readers. And so here goes:
1 The American Immigration Lawyers Association (AILA) New York
chapter held an October 11, 2005, meeting with Robert Cowan, Director
of the National Benefits Center of U.S.C.I.S. (NBC) in which Mr.
Cowan clarified the role of the NBC and attempted to answer questions
on many issues. As many know, all family based cases for adjustment
of status to permanent residence across the United States must first
be sent for pre-processing to the NBC, which accepts the cases after
fee-in at the Chicago lockbox. I asked and had answered my question
of why the NBC administratively closes I-485 adjustment of status
applications and I-765 employment authorization applications of
individuals with exclusion orders since they could still adjust
status to permanent residence before the U.S.C.I.S.. Mr. Cowan clarified
that an administrative closure is not a denial. It just means that
the NBC does not know what to do with the case, and that it wants
the local office to deal with it. He stated that after 90 days,
individuals could take the administratively closed employment authorization
applications to the local C.I.S. district offices, and that he would
try and change the language of the administrative closure in these
situations, and that this would should be done within 30 days. So
far, we have not seen a directive from the NBC clarifying the nature
of the administrative closures. In addition, there appear to be
two other problems with the scenario of going to the local office
after 90 days. The first is that where the NBC has closed the application
prior to the biometrics appointment, the local office says that
it cannot process the employment authorization application. Second,
even if the biometrics have been done, the local office still might
not process the application where the computer check shows that
the application is not in the local office, informing the alien
that he/she should work with the NBC to have the file transferred
to the local office. Hopefully, a solution can shortly be worked
out. *
2 The Nebraska Service Center (NSC) Asylee-Refugee conference call
of September 29, 2005, produced information that the postmark date
controls for a reentry permit as to the date that the individual
must be in the U.S. for filing purposes. The rule is that an applicant
for a reentry permit must be physically present in the United States
at the time that a reentry permit is being filed. There are many
occasions in which individuals must leave the U.S. immediately and
the advice given by most if not all attorneys has been to wait until
the application is actually received at the NSC. This enunciation
of the critical time for being in the U.S. allows for more flexibility
in travel plans for applicants.
3 From our experience and that of others, the American consulate
in Guangzhou has been denying immigrant visas and returning I-130
immigrant family based petitions to U.S.C.I.S. in marriage cases,
many of which have much evidence to prove the bona fides of the
marriage. The major difficulty here is that cases slide into limbo
after denials from the consulate because of the lack of ability
to track the cases any farther and the low priority given to them
by U.S.C.I.S.. The consulate in Guangzhou has at times informed
us that cases have been returned to the States, only for us to discover
after much tracking with U.S.C.I.S. that the service center does
not have the case. Upon confronting Guangzhou with the new information,
we have received word that the cases are still in Guangzhou undergoing
administrative processing. We have now created a form letter requesting
the consulate in Guangzhou to inform us as to the specific date
that a case is returned to the States . Unfortunately the consulate
also hands back to individuals the documentation to prove the bonafide
nature of the petition that it requests at interview for them to
return with instead of including it in the case file to be transferred
back to U.S.C.I.S.. On the other side, U.S.C.I.S. has compounded
the problem by giving low priority to these returns, and the Vermont
Service Center (VSC) for example has given us variable times as
to when returned cases can be reached for processing, including
informing us in June 2005 that it was only processing April 2003
returned cases. Other response letters that we have received from
the VSC have asked the applicant to wait 30-60 days and 90-120 days,
which dates have already expired without result. It does appear,
however, that the VSC has become more aware of the problem recently
and stated in a liaison meeting with AILA on September 22, 2005,
that it was testing a new CLAIMS updating procedure that may result
in consular returns information being available on-line. It admitted
that it had a backlog problem and would continue to increase levels
of resources to the remaining backlog. We have not as yet seen results
in any cases, or even a response to our twice sent letter to the
Center Director asking whether it would be more advisable to file
new I-130 petitions explaining that the first petition was returned
to the service center rather than waiting for the VSC to reach the
cases according to their own schedule.
4 The Nebraska Service Center Asylee-Refugee conference call of
September 29, 2005, was notable also for its discussion of points
concerning treatment of I-730 asylum follow to join petitions for
relatives: A.) One community-based organization noticed a trend
that I-730 applicants always receive a referral for further evidence
(RFE) where a marriage occurs after approval for refugee status
prior to the admission of the refugee. B.) NSC officers do not have
authority to grant follow to join in nunc pro tunc (retroactive
approvals) for I-485 applications in the case of children who have
aged out, and so the aged out children must interview at the local
asylum office. C.) In I-730 petitions, the NSC only obtains a copy
of the I-589 application of the principal alien, and not the entire
file. (As a result, the NSC may ask questions or request documents
that would not otherwise be needed if it had the entire file). D.)
Currently the NSC is not adjudicating I-730 applications where the
beneficiaries are in the United States. E.) Currently beneficiaries
of I-730 application who were not inspected will not be given an
I-94. Of course, readers should note that the conference call answers
are subject to amendment by the Service Center or by U.S.C.I.S.
headquarters at any time.
5 The Department of State (Department) appears to have finally
got the message that the U.S. is in a scramble with other countries
to attract foreign students. After 9/11, this country had become
inhospitable to so many potential foreign students and scholars
that they had simply gone to other countries or chosen to study
at home. Chinese universities are even now jumping at the opening
and making a major push to put themselves among the world's elite
by attracting the best instructors and professors of Chinese descent
from other countries. In a September 28, 2005, State Department
memo to all consular posts concerning students and immigrant intent,
the Department outlined several changes in policy to make it easier
for students to come and study in this country. Many students are
denied student visas on the basis of having immigrant intent (most
non-immigrant categories including student require a showing that
the applicants have no tendency to want to remain in the U.S. after
the purpose of the visa is ended) because they are not able to show
sufficient ties to the home country to justify (in the consular
officer's eyes) the student visa. The Department pointed out that
the concept of ties is relatively less useful in assessing the present
intent of students because the typical student is young, without
employment, family dependents, and substantial personal assets.
The cable looked upon youths' major advantage in establishing their
bonafides that they did not necessarily have long-range plans and
hence were relatively less likely to form an intent to abandon their
homes. On intended course of study, the Department stated that the
individual's plans to study a subject for which there was no or
little employment opportunity in the country of residence was not
a basis for denying the visa because circumstances might change.
The fact that the country of residence could provide equivalent
college courses in the same subject matter was also not a basis
for rejection as a student has the right to choose where he/she
will obtain an education if accepted by a school. On the subject
of going to lesser-known schools, the Department stated that all
legitimate schools must be accorded the same weight under the law,
and that there is no legal difference between community colleges,
English language schools and four year institutions -- an applicant
should be adjudicated on the bonafides as students regardless of
the institution of program of study. Consular officers also should
not go behind the I-20 to adjudicate the applicant's qualifications
as a student for that institution. The I-20 is evidence that the
school has accepted the applicant as a student and the choice of
subject matter is not determinative of the applicant's scholastic
aptitude. Finally the Department stated that students who have to
apply for new visas if going home or traveling during their period
of study should generally be reissued visas in the normal course
of business unless circumstances change significantly from the time
of previous issuance since students should be encouraged to travel
home during their studies in order to maintain ties to their country
of origin. This is a significant cable which bows to the realities
of today's world in which a U.S. degree is no longer a necessary
badge of or automatic gateway to success. However, the U.S. has
still has a long way to go in bringing out the welcome wagon for
foreign students, especially in the areas of curing deficiencies
to make it easier for students to to open bank accounts, rent housing,
drive cars, pay taxes, or even work part-time off-campus during
the time that they are studying in the U.S.. Allowing them to obtain
Social Security cards would greatly alleviate the situation. The
non-refundable $100 SEVIS fee upon obtaining an I-20 form from a
U.S.institution regardless of whether the applicant ever receives
the student visa should be quickly dropped as it remains a source
of tension between the U.S. and other countries and a discouragement
to many intending foreign students to whom $100 is a large sum of
money.
I hope that all readers had a wonderful and filling Thanksgiving.
* Since the original date of this writing, Mr. Cowan has responded
that the NBC is now changing its procedure so that instead of administratively
closing cases, the NBC will transfer the cases unadjudicated to
the local field office for disposition. Applicants will receive
a system generated transfer notice, notifying them that the case
has been sent to the local office.
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