This is the second part of a 4 part article which will
conclude on Friday of this week. Tomorrow's installment will discuss
the right of asylee derivatives to travel back to their homelands.
By Alan Lee, Esq.†‡
Part II - S. 795/ H.R. 1379 Propose Important
Restrictions on U.S.C.I.S. Fee Hikes and FBI Name Checks
Senate Bill 795 and its House counterpart, H.R. 1379, innocuously
titled the "Citizenship Promotion Act of 2007" may well
be remembered not for its citizenship provisions, but for its warning
shot across the bow that fee hikes of such magnitude as proposed
by U.S.C.I.S. recently (86% weighted average increase on all fees)
and long out drawn-out delays in immigration cases because of FBI
name checks will not be allowed. The legislation was introduced
on March 7, 2007 in both chambers by Senator Barack Obama (D-IL)
and Representative Luis Gutierrez (D-IL).
In U.S.C.I.S.'s proposed rule of February 1, 2007, astronomical
fee raises were proposed including for I-485 applications (to adjust
status to permanent residence) from the current fee of $325 to $905,
I-751 petitions (to remove conditions on residence) from $205 to
$465, I-601 applications (for waivers of grounds of excludability)
from $265 to $545, and N-400 applications (for naturalization) from
$330 to $595 (all fees given without the $70 biometrics fee). The
reasons cited by U.S.C.I.S. were Congress' transforming legacy INS
into a fee based agency in the past, and that the collection of
fees must not only ensure recovery of full costs of adjudications
and naturalization services, but also pay for U.S.C.I.S.'s infrastructure.
Much of the increase would go to fund the agency's ambitious plans
to upgrade its infrastructure. However, the magnitude of the increase
fueled much negative reaction. The proposed legislation would change
U.S.C.I.S. from a totally fee based organization to one only partially
dependent upon collection of fees by authorizing annual appropriations
to the Department of Homeland Security for an amount equal to the
difference between the fees collected by U.S.C.I.S. and the cost
of providing the services. The DHS would be allowed to set fees
to ensure recovery of full costs of providing such services or only
a portion. It is certainly time for Congress to move the operations
of U.S.C.I.S. back to partial funding as immigrants by and large
have proved a positive force to this country's economy. It is difficult
for lawyers in this field a long time to grasp the enormity of these
fees as we can remember a time when I-130 petitions cost the applicant
$10, I-485s $30, and N-400s $15. A retired Officer-in-Charge (OIC)
of Legacy INS, Victor W. Johnston, writing in the Immigrant's Weekly
publication of ILW.com, on February 12, 2007, summed it best in
remembering fees costing $10 for an immigrant petition and $50 for
an application for citizenship, stating that he did not believe
that there are enough people to justify such exorbitant fees even
if CIS was so technologically advanced that it would be in the 23rd
century, and to pay him $50 each, give him access to the system,
and he would do as many naturalization applications as anyone wanted
and save the taxpayers and users a bundle.
FBI name checks have become the elephant in the room in U.S.C.I.S.
adjudications as there are now acknowledged large numbers of applicants
for adjustment of status to permanent residence or naturalization
whose cases cannot be adjudicated because of the failure of the
FBI to complete name check clearances on a timely basis for U.S.C.I.S.
Michael Aytes, associate director of domestic operations for U.S.C.I.S,
informed the audience at the Spring Conference of the American Immigration
Lawyers Association on March 16, 2007, that 261,000 cases are pending
FBI checks as of January 2007. The agency does not appear to have
a solution as seen in the interoffice memorandum of December 21,
2006 by Mr. Aytes, "FBI Name Check Policy and Process Clarification
for Domestic Operations" that requests for expedite can only
be for military deployment, ageout cases not covered under the provisions
of the Child Status Protection Act (CSPA) and applications affected
by sunset provisions such as diversity visas (DV's), compelling
reasons as provided by the requesting office (e.g.-critical medical
conditions), and loss of Social Security benefits or other subsistence
in the discretion of the District Director. The memo further notes
that mandamus filings will no longer be routinely expedited. (However,
it should be noted that at least one official of U.S.C.I.S. has
suggested that part of the proposed fee increase would be used to
fully fund the FBI background checks).
S. 795 would implement a system for timely completion of background
checks under which the FBI would make a reasonable effort to complete
background checks within 90 days of receiving the request from U.S.C.I.S.;
the Attorney General should document the reason why a background
check was not completed if it reaches the 91st day without completion;
after 121 days, the Attorney General must document the reason why
the background check was not completed before that date; that if
the check goes on for 181 days, the Attorney General must submit
no later than 210 days a report to appropriate congressional committees
and the Secretary of Homeland Security describing the reasons why
the background check was not completed within 180 days and the earliest
date on which the Attorney General is certain that the background
check will be completed. If the Secretary of Homeland Security receives
such report from the Attorney General, the Secretary is to provide
the applicant a copy of the report, redacted to remove any classified
information.
Hopefully this legislation can be passed as the two above subjects
are of prime concern to many people seeking immigration benefits.
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