REMNANTS FROM PAST ARTICLES
By Alan Lee, Esq.†‡
1 In our article, "Hurricane Katrina
and Other Happenings" (9/27/05), we complained about the
dearth of instructions for whether conditional asylees who received
conditional grants prior to enactment could file forms I-730 (follow
to join applications for family members of asylees) and I-485 (applications
for adjustment of status to permanent residence) following 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. We noted that the policy vacuum had left many individuals
including attorneys in a quandary of whether to file or not, and
that we had encouraged the question to be brought up either before
or in a liaison meeting with the American Immigration Lawyers Association.
On November 8, 2005, at the Asylum Office meeting in Washington,
the Central Office of U.S.C.I.S. noted that many Chinese had filed
I-730s when the Real ID Act passed. As of the end of October, 15,800
+ cases had been identified, and the agency was holding I-730 applications
until the conditional grants had been removed and the final asylum
approvals granted. At that time, the cases would be put back in
the work flow to be adjudicated. Insofar as permanent residence
applications were concerned, the Asylum Office stated that conditional
asylees must wait one year after the conditional status is lifted
in order to file I-485s -- that they must wait for the security
checks to be completed, receive final asylum approvals, and then
wait another year before filing the I-485 applications.
We are pleased that the Central Office is finally paying attention
to the issue, but believe that the current view is not justified
insofar as forcing conditional asylees to wait for one more year
after conditional asylee status has been officially removed to file
I-485 applications and that the one year period should be counted
within the time already spent in conditional asylum status. The
meeting view is seriously flawed in disadvantaging persons granted
conditional asylum years ago vis-a-vis persons granted on or after
May 11, 2005, who immediately start the one year period to file
I-485 applications upon Asylum Office or Immigration Court grant.
At the very least, the one-year period should run from May 11, 2005,
for individuals receiving grants based on population control policies
prior to that date. We are encouraging the topic to again be addressed
at a meeting with the American Immigration Lawyers Association.
We understand that there are discussions concerning these issues
outside of the liaison meetings at this time. Further questions
that we would like to have addressed are whether conditional asylees
who filed I-485 applications after May 11, 2005, without official
lifting of the conditional basis will have their applications held
in abeyance of eligibility or returned with refunds if U.S.C.I.S.
continues to maintain its current view.
2 In our article, "Recent Developments
in Immigration Law" (11/18/05), we related apparent good
news from Attorney Huynh Loan of Frederickson and Bryan, PA, that
the FBI had recently established a national name check office for
individuals to call [(202) 324-2399] to inquire concerning the status
of FBI name checks, which are usually the cause of immigration adjustment
of status cases not being approved at interview or being seriously
delayed thereafter because of clearances not being received by U.S.C.I.S.
We tried the number and were given an e-mail address, fbinncp@ic.fbi.gov,
on which we included name, date of birth, alien registration number,
and e-mail address, and wrote that this would hopefully be the beginning
of a favorable trend towards clearing name checks more quickly and
establishing a dialogue for the FBI to easily distinguish between
two persons sharing the same name. Subsequent to our writing, we
learned that many individuals had tried this method in recent months
without visible success. We contacted FBI agent Al Pisterzi on December
1, 2005, upon whose information Attorney Loan had relied, and asked
him whether the FBI intended to reinstate live assistance on the
telephone. Contrary to Attorney Loan's understanding, Agent Pisterzi
answered that he had no information that there was any plan to reinstate
live assistance. On our informing him that we as well as some of
our colleagues had used the e-mail address for inquiries but had
not received replies - some after months of waiting, agent Pisterzi
stated that he could not answer as to why such would be the case,
but reminded us that people have to include identifiers in the subject
line so that the search and reply can be made. He further stated
that name checks are run out of headquarters and he was just notifying
the public of the way the system is operated (Agent Pisterzi is
based in Minneapolis). It thus appears that, unfortunately, we were
too optimistic with our information in the previous article. We
refer readers to previous advice given in a January 2005 notice
from the Newark office of CIS for FBI name check expedite criteria
that one of the following conditions must be met: Military deployment
must be imminent; the person is not covered by the Child Status
Protection Act and will age out; a writ of mandamus lawsuit is pending
in the federal court; there is a grant of permanent residence status
by the immigration court; or there are compelling reasons as supplied
by the requesting office, eg. critical medical condition, to be
assessed on a case by case basis.
3 In our article, "Immigration Notes"
(12/5/05), we related that at the American Immigration Lawyers Association
New York chapter meeting on October 11, 2005, with Robert Cowan,
Director of the National Benefits Center of U.S.C.I.S. (NBC), we
asked the 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 can
still adjust status to permanent residence before the U.S.C.I.S..
At that time, he stated that he would try and change the language
of the administrative closure in these situations, and that this
should be done within 30 days. Although not within 30 days, Mr.
Cowan has indeed changed the policy, and we received a recent chapter
mailing carrying Mr. Cowan’s response that, "However,
based on feedback that we have received concerning this procedure,
the NBC has recently changed this process. Instead of administratively
closing these cases, the NBC will transfer the cases, unadjudicated,
to the local field office for disposition. As such, applicants will
receive a system generated transfer notice, notifying them that
the case has been sent to the field office." This is an absolute
improvement over the administrative closure process, which confused
and alarmed attorneys and aliens alike.
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