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Is Money Behind USCIS Move To Have Department Of State Take Unprecedented Action To "Update" July Visa Chart?by Alan Lee, Esq.
Was the Department of
State's unprecedented action on July 2, 2007, issuing an "Update on July
Visa Availability" closing off visa availability for the rest of the
fiscal year for employment based cases and essentially gutting its July visa
bulletin (which opened the employment based categories EB-1 through EB-3 for
adjustment of status applications) all about the money with U.S.C.I.S. in the
role of culprit? We believe the answer
unfortunately is "yes" and reflects U.S.C.I.S.'s desperate desire to
grab its huge future fee increase from individuals that it saw slipping through
its fingers. U.S.C.I.S. undoubtedly perceived its expected windfall of hundreds
of millions of dollars through its outlandish July 30th increase in fees for
petitions and applications (average increase 66%) threatened by the July visa
chart which would allow many employment based individuals and their families to
beat the fee increases. A typical family
of four (husband, wife, child aged 16 and the other 12) applying for adjustment
of status currently pays $1,605 to U.S.C.I.S. (including I-140 charge). That same family on and after July 30th would
pay $4,105, an increase of $2,500, or 255%.
If one multiplies those figures by at least 100,000 ( $250 million
difference),[1]
one can imagine the explosive temper of top U.S.C.I.S. officials when they saw
the Visa Office July chart. U.S.C.I.S.
has made no bones that it is depending upon the fee increases to fund its
proposed systems and structures for the 21st century. The Visa Office made it
clear through the updating of the visa bulletin that its update was only
because of U.S.C.I.S. action using the phrases "The sudden backlog
reduction efforts by Citizenship and Immigration Services Offices during the
past month....", and "As a result of this unexpected
action....." The Visa Office cited
these efforts as resulting in the use of almost 60,000 employment numbers. It is also clear that the Visa Office had no
wish to defend U.S.C.I.S. when it issued its update on July 2nd. Whether it retains its stance in the future
of washing its hands and pointing the finger at U.S.C.I.S. remains to be seen
in light of probable Administration pressure to spin the story in a more
positive light to the government as this Administration has exhibited a
continual attitude of "soaking" immigrants, legal or otherwise (
$25,000+ for a family of four to immigrate under the recent fallen Senate bill
( See our article, "$10,000 Required For Earned Legalization and Adjustment
Under the Secure Borders, Employment Opportunity and Immigration Reform Act", http://www.alanleelaw.com/english/articles/a2007-05-26.htm),
which figure was modified from the earlier Administration proposal of $82,000+
( See our article, "Mr. Lee's Comment to March 28, 2007 White House Immigration
Reform Proposal - Z Visas", http://www.ilw.com/immigrationdaily/digest/2007,0403.shtm
in "LETTERS" section), the passed amendment to S. 1639 raising H-1B
surcharge fees to $5,000 on top of the fraud ($500) and filing ($190) fees, and
the rapacious July 30th U.S.C.I.S. fee increase). The author recalls his telephone conversation
with Charlie Oppenheim, the chief of immigrant visa control and reporting, Visa
Office, in December 2004 concerning the 101,000 "pool numbers", in
which Mr. Oppenheim gave no credence to U.S.C.I.S. figures that the agency
had cleared over 100,000 cases
(including dependents) between April and November. (The exact differential was 115,000 cases, a
rate of about 16,400 per month). The
author has no knowledge of the exact number of cases that U.S.C.I.S. claimed to
close in June for the State Department to announce that almost 60,000
employment numbers were used (employment based immigrant visa numbers are also
requested by U.S. consulates and embassies), but notes that the vast majority
of employment based cases are with aliens in the States who adjust status here
rather than consular processing their cases.
If U.S.C.I.S. claimed to clear anywhere in the area of 40,000-50,000
cases last month, that number for one month is difficult if not incredulous to
believe, and if true would have involved massive shifts of U.S.C.I.S. personnel
from other responsibilities to comb through and adjudicate all files of persons
eligible to immigrate through employment, or less than careful consideration of
the cases. Hopefully the agency was not
in such a desperate state as to cut corners to endanger our national security
if it was the latter case. The facts and the legality
of U.S.C.I.S.'s actions will undoubtedly be the subject of multiple
lawsuits. However this turns out, the
agency and the Administration will wind up with less respect than before. This Administration needs all the good
publicity that it can muster in light of its unpopular Iraq war and recent
actions freeing Scooter Libby (not even Paris Hilton avoided imprisonment) and
supporting Attorney General Alberto Gonzales and creating further public
mistrust of the justice system even after confirmation that he and other White
House aides politicized the selection of United States Attorneys. Unless U.S.C.I.S. and the Visa Office can
change course, this episode will unfortunately become a black eye to all
parties as further facts emerge in the coming days.
1 100,000 + figure based upon author's conjecture of
number of labor certifications granted since March 2005 (pre and post PERM),
cases pending with U.S.C.I.S. in early 2005, and non labor certification
employment based immigrant categories set off by the annual allotment of
available employment based immigrant visas since March 2005. Further research
would have to be done to establish more accurate figures, but the author would
be surprised if the figure was any less as even U.S.C.I.S. believed that an
open employment chart for July would cause an avalanche of applications. To deal with the anticipated level of
applications, the agency closed premium processing of I-140 petitions for 30
days using phrases in its June 27, 2007, announcement such as "due to pent
up demand for preference visa categories for which visas will become
available...", "substantial increase...", and "volume of
Form I-140 petitions ... expected to exceed USCIS' capacity to provide the
Premium Processing Service."
Alan Lee, Esq. is a 25+ 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.
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