Update On Select Immigration Issues
December 13, 2005
In our last three articles, we discussed three topics of interest on which we must report subsequent developments.
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, firstname.lastname@example.org, 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.
© 2005 Alan Lee, Esq.
Alan Lee, Esq. 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. Related to this article, Mr. Lee correctly analyzed the statutory language to allow the additional 20,000 H-1B numbers to apply to all qualified H-1B applicants in his December 4, 2004 article, "Season's Greetings from the Immigration Front". Also see his April 14, 2005 article, "Additional 20,000 H-1B Numbers For FY-2005 - Should Aliens Apply For FY-2006 Instead?" and "Some Details Appearing For FY-2005 Additional 20,000 H-1B Numbers." Alan Lee can be reached at: email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.