News From CLINIC's Case Files: Issue Five
The following is a compilation of examples of
vulnerable immigrants and developments that negatively impact the
population served by the affiliate and partner agencies of the Catholic
Legal Immigration Network, Inc. (CLINIC).
October 2005: Issue No. 5
1. Refugee Adjustment of Status Applicants Receive Greencards with
USCIS-Generated Errors
In March 1998, Ms. T entered the United States as a refugee pursuant to
section 207 of the Immigration and Nationality Act (INA). Under the
law, refugees are eligible to adjust status to Lawful Permanent
Resident
(LPR) one year after their initial arrival in the United States. When
a
refugee is approved for permanent residence, he or she is admitted as
an
LPR as of the date of his/her initial arrival into the United States.
This is important, as five years of LPR status is required of
applicants
for U.S. citizenship. When Ms. T received her permanent resident card
(greencard), the "Resident Since" date was erroneously noted by the
USCIS as November 2002. (This meant that Ms. T appeared ineligible to
apply for U.S. citizenship until 2007). The correct date should have
been March 1998, the date of Ms. T's initial entry into the United
States. To correct this error, Ms. T filed an I-90 Application to
Replace Permanent Residence Card to USCIS. The instructions for the
I-90 Application indicate that the filing fee for the application can
be
waived if the application filed was the result of a card issued with a
USCIS-generated error. After filing the application, Ms. T received a
rejection notice from USCIS stating, "Based on the information you
provided, the correct filing fee is $70.00. Please submit your
completed application/petition with the appropriate fees to the address
listed on the bottom of this notice." The fee charged by USCIS for
biometrics is $70.00, a fee Ms. T had already paid when she filed her
initial application to receive a her permanent residence card.
CLINIC raised both of these issues with USCIS HQ. On September 7,
2005,
USCIS issued a press release announcing changes to the Form I-90 filing
process to correct USCIS generated errors. As a result of these
changes, such applicants will not be charged additional filing and
biometrics fees. USCIS also informed CLINIC that between February and
July 2005, the Nebraska Service Center (NSC) issued between
52,000-53,000 greencards with the same "resident since" date problem
noted above as a result of a computer systems error. USCIS HQ stated
that the NSC was putting together a process for issuing new cards to
individuals who received cards with this error. This process has yet
to
be announced to the public.
2. Two Years and Counting....Security Checks and Processing Delays
Keep
Asylee and Spouse Separated
Mrs. B, a Christian Chaldean who fled Iraq and received asylum in the
United States, filed an I-730 Asylee Relative Petition for her husband
in March 2003. The petition was approved in September 2003. Mr. B was
scheduled for an interview at the U.S. Embassy in Jordan in late 2003,
but due to security reasons, had to flee the country. In February
2004,
he reached Damascus, Syria, and after waiting several months for his
file to be transferred to the U.S. Embassy in Damascus, was interviewed
in June 2004. The U.S. Department of State granted Mr. B's security
clearance in November 2004, but since that time Mr. B has been waiting
for a security clearance from DHS. After inquiring with the DHS Office
of Refugee Affairs in February 2005, Mrs. B and her attorney were told
that Mr. B's case was undergoing a "security screening" and that he
just
had to wait. Despite additional inquiries to DHS, Mr. B's case
continues to be pending and he and his wife remain separated.
3. Security Check Delays Prolong Permanent Residence Applications for
Refugees
Two brothers, J- and A-, entered the United States as refugees in
November 2000 with their parents. In early 2002, the entire family
simultaneously filed applications for lawful permanent residence. In
December 2002, the family was fingerprinted by USCIS. While all other
members of their family have received their greencards, J- and A-
continue to wait. Multiple inquiries have been submitted to USCIS. In
response to the last inquiry submitted, USCIS sent a response that
stated, "Your application is currently under review. Please allow more
time."
4. USCIS Erroneously Denies Adjustment of Status Applications to 3
Minor Children of U.S. Citizen, Requiring Family to Pay an Additional
$330 to Have Case Re-Adjudicated
In April 2005, USCIS denied three adjustment of status applications
filed by the minor children of a U.S. citizen. The basis of the denial
for the cases was erroneous. The denial notices stated that the
applicants had been ordered excluded, deported, or removed from the
United States on November 5, 2001. In fact, the children, who had been
residing in undocumented status in the United States with their lawful
permanent resident father, were given voluntary departure, with which
they complied on November 5, 2001 when they returned to Guatemala.
Desperate to be with their father, the children later returned to the
United States, and when their father became a U.S. citizen, filed the
above referenced adjustment of status applications. Because the
children are under the age of 18 and are the children of a U.S.
citizen,
they are eligible to adjust status regardless of their manner of entry
or undocumented status.
In May 2005, a motion to reopen and $110 filing fee for each child was
filed with USCIS. Because a separate filing fee had to be submitted
for
each child, the total cost to the family to correct this USCIS error
was
$330. In August 2005, USCIS reopened the case, and the applications
for
adjustment of status remain pending.
5. Erroneous TPS Denials
TPS Erroneously Denied, MTRO Pending Over 4.5 Years Prior to Decision
In February 1999, Mr. P, a national of El Salvador, applied for
Temporary Protected Status (TPS) with the Texas Service Center (TSC).
After receipt of his application, the TSC requested that Mr. P submit
additional documentation, which he submitted in a timely fashion and
for
which he received a receipt. Because he sent the additional
documentation via certified mail, Mr. P also had proof of delivery.
Despite his timely compliance with the TSC's request for additional
information, in February 2000, Mr. P received a notice from the TSC
indicating that his TPS application had been denied due to
"abandonment"
and failure to provide the requested additional evidence. Mr. P
responded to the TSC in writing along with proof that he had timely
complied with the TSC's request for evidence and had not abandoned his
application. After several additional inquiries with the TSC and his
local USCIS office, in December 2000, Mr. P filed a motion to reopen
with the TSC. Since that time, Mr. P regularly inquired into the
status
of his motion to reopen. In July 2005, CLINIC sent a letter to USCIS
HQ
regarding this case. In September 2005, almost five years after filing
the motion to reopen, USCIS HQ informed CLINIC that the case had been
reopened.
TPS Denied, Re-registrant Left without Employment Authorization while
USCIS Reviews Case
Mr. P is not alone. Ms. T, also a national of El Salvador, filed for
TPS in 2001. USCIS denied her 2001 application, but Ms. T filed again
during the late initial registration period. In June 2004, this
application was granted by a local district USCIS office. USCIS
district offices do not issue application approval notices, but Ms. T
received employment authorization from the local office when her TPS
was
approved. In February 2005, Ms. T filed for TPS re-registration, and
included a copy of the employment authorization document (EAD) issued
by
the local district office in 2004, as proof of her current TPS status.
However, in August 2005, she received a denial notice from the USCIS
California Service Center (CSC) stating that her re-registration
application was being denied because USCIS records showed that her
prior
TPS application had been denied. The notice further stated, "Since
temporary protected status has not been granted, the applicant is
ineligible for re-registration...therefore the application is denied."
Ms. T's renewal EAD application was denied for the same reason.
We believe that the CSC's decision erroneously referred to the 2001 TPS
denial. Because no approval notice was issued by the district office
in
2004, most likely no evidence of this approval was available to the CSC
officer who issued the 2005 denial notice. Ms. T's representative
submitted an inquiry to the CSC. The response was, "Paperless denial,
needs review. Lincoln denied I-821. [Lincoln is the USCIS Service
Center
that denied the 2001 TPS application]. CSC needs to review the file to
make sure that the information in its system is appropriate for the
information in the file. This will take some time." In the interim, her
employment authorization has expired. Ms. T has filed an appeal of
this
decision and CLINIC is working with USCIS HQ to sort out her case.
6. NBC Erroneously Informs V-Visa Applicants that Priority Dates are
Current
In March 2005, Ms. C filed an I-539 application to change/extend
nonimmigrant status to V-visa status with the National Benefits Center
(NBC). V-visas are available to the spouses and children of lawful
permanent residents (LPRs) whose I-130 visa petition or permanent
residence application (filed on or before December 21, 2000) has been
pending for three or more years. V-visa holders can remain in the
United States until they become permanent residents or until the law
terminates their V status.
In August 2005, Ms. C received a notice from the NBC granting her
V-visa
extension for only 6 months. The notice indicated that since her
immigrant visa priority date was current she had 6 months to file for
adjustment of status to that of a LPR. The notice further stated, "If
you fail to file for Adjustment of Status within the six month period,
you cannot extend, be admitted, or readmitted to a V nonimmigrant
status." In reality, Ms. C's priority date is not yet current and she
will not be eligible to adjust status for several more years.
It appears that the NBC continues to treat Ms. C as a member of the 2A
preference category. Upon approval of the I-130 immigrant visa
petition, Ms. C was part of the 2A preference category, which includes
unmarried children under 21 of LPRs. However, because Ms. C is now 21,
she is part of the 2B preference category, which includes unmarried
children over 21 of LPRs. Ms. C's priority date is August 1997 and she
is a native of Mexico. The current priority date for 2B nationals of
Mexico is December 1991.
In September 2005, CLINIC submitted a letter to USCIS HQ with several
examples of this problem in an effort to resolve it.
7. Refugee Has Valid EAD Erroneously Confiscated by DMV
Mr. M entered the United States as a refugee at the JFK airport in New
York, NY. Upon arrival, an officer with the Customs and Border
Protection (CBP) issued him both an I-94 entry document and an
employment authorization document (EAD). Mr. M was resettled in
Scranton, PA with assistance from the Refugee and Immigration Services
office at Catholic Social Services (CSS).
On August 12, 2005, Mr. M and his CSS case manager went to the
Pennsylvania Department of Transportation (PennDOT) with the documents
he needed in order to obtain a PA driver's license. Among other
things,
Mr. M presented his I-94 card, social security card, EAD, and a letter
from his resettlement agency. Upon examination of Mr. M's documents,
the PennDOT manager noticed that Mr. M's EAD differed from the picture
of the EAD in the PennDOT manual. Mr. M's EAD was an older version of
the EAD, yet one that continues to be issued by CBP at points of entry.
The picture that appeared in the PennDOT manual showed the new version
of the EAD. The PennDOT manual instructs employees to fax a copy of
any
EAD that differs from the EAD pictured in the manual to Immigration and
Customs Enforcement (ICE) in Philadelphia. After faxing ICE a copy of
the EAD, the PennDOT manager spoke with an ICE officer who stated that
Mr. M's card was not valid nor was it issued by USCIS. Furthermore,
the
ICE officer noted that Mr. M's version of the card had not been in use
since 1997. ICE disputed Mr. M's claim that the EAD had been issued at
JFK, contesting that refugees are not issued EADs at the airport. The
ICE officer then instructed the PennDOT manager to confiscate the EAD
card and express mail it to ICE, which the PennDOT manager did. A
Department of State official who intervened on Mr. M's behalf
instructed
ICE to return the EAD, which they had not done as of September 9, 2005.
CSS provided Mr. M's employer information about the validity of Mr. M's
I-94 refugee stamp and that it was sufficient evidence of employment
authorization. Nevertheless, Mr. M was frightened and discouraged by
the incident and he was unable to begin working when planned.
About The Author
The Catholic Legal Immigration Network, Inc.'s ("CLINIC") Division of Public Education and Advocacy plans to circulate a compilation of its current cases on a bimonthly basis, in an effort to regularly document and report on problematic developments facing the population served by its network. CLINIC believes that documentation and media coverage of the human impact of our nation's immigration laws and policies are crucial to advocacy efforts to create a more just immigration system. CLINIC relies heavily on the case examples that it receives from its affiliate agencies in order to effectively advocate with officials at the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR). Please contact Vanessa Waldref at
vwaldref@cliniclegal.org or (202) 635-5812 with your examples of backlogs, poor customer service, and other problem cases.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
Copyright © 1999-2005 American Immigration LLC, ILW.COM
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