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.

 


The author is a 26+ 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 article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article © 2007 Alan Lee, Esq.

 

Copyright © 2003-2012 Alan Lee, Esq.
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