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Greg Siskind on Immigration Law and Policy

WHAT IT WILL TAKE TO MAKE THIS ALL GO AWAY: AN OPEN LETTER TO SECRETARIES RICE AND CHERTOFF

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Dear Secretary Chertoff and Secretary Rice:



It certainly is not necessary to recite the recent history involving the issuance of the July Visa Bulletin, the frenetic pace of adjudications at USCIS and the claim by USCIS to have adjudicated tens of thousands of adjustment of status petitions in a few dozen hours, and the State Department's unprecedented revocation of the Visa Bulletin. But we now find ourselves in a position where the reputation of both agencies are muddied and tens, perhaps hundreds, of thousands of individuals have been substantially harmed by your agencies' actions. And in a week when Americans' anxieties have been raised regarding the security screening of visa applicants, serious questions are being asked about whether your agencies somehow altered or ignored clearances procedures in order to rush cases through to conclusion to avoid processing cases before a 66% fee increase went in to effect.



So how do we reverse the damage (to the extent it can be remedied)? I would urge both of your agencies to cooperate and undertake the following actions:



1. Immediately issue another revision of the July Visa Bulletin and make all categories previously listed as current again current.



2. In the August Visa Bulletin to be issued on July 12th, continue to make categories current that have been listed as current in the newly revised Visa Bulletin noted above.



3. Delay the fee increases for Forms I-140, I-485, I-765 and I-131 until  September 1st.



4. Waive the requirement that a medical examination be included with the I-485 petition at the time of filing or, at a minimum, allow for a waiver of this requirement if an applicant can show that no appointments are available with any local physicians in the local USCIS subdistrict prior to the filing deadline.



Furthermore, to the extent your agencies have not yet completed processing and issued all visas available under the 2007 fiscal year quota, a sufficient number of visas should be reserved to complete processing of employment-based  cases in the current categories that are currently held up in security clearances. Those applicants deserve to have their cases decided one way or the other and your agencies should cooperate with the Director of the Federal Bureau of Investigation to set a deadline of the end of this fiscal year to complete the necessary background checks and adjudicate these cases.



Taking these actions now will also have the advantage of saving taxpayers a considerable amount of money since it will avoid litigation. A class action suit to force a reversal of your decisions has already been filed this week and another suit is likely to be filed by the American Immigration Law Foundation in the coming days. The chances of the government winning these suits are slim.



 



Taking these actions would send the American public an important signal that your agencies are concerned about both security and fairness. Most of the affected individuals will likely become American citizens and taking the actions noted above will send the important message that it is important that everyone - our citizens and our government institutions alike - play by the rules. The individuals who have waited patiently for years and did everything they were supposed to do have played by the rules. Now it is time for your agencies to do the same.



Regards,



Greg Siskind, Attorney at Law


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  1. legal's Avatar
    That's all very nice but where are visas for August going to come from? It would be sufficient to just accept all July AOS applications and put them on hold until October while at the same time giving those applicants EADs and Advanced Paroles. Everything else would require the passage of a new act from Congress (e.g. maybe recapturing wasted EB visas from previous years) which doesn't seem likely at this point.
  2. Greg Siskind's Avatar
    You're assuming that the numbers requested by USCIS are no longer available. If they were illegally requested and USCIS has to go back to the drawing board, then they're back in the pot.
  3. Greg Siskind's Avatar
    Just to further clarify to my comment on legal's comment, I don't think anyone thinks the cases will actually be adjudicated for most for many years. The idea is just to get cases filed and get the benefits of the adjustment applications. Of course, that's exactly what was expected when DOS made the numbers current in the first place. If they really only wanted to get the number of cases needed to use up the numbers, they would have just advanced the numbers a bit rather than making them current.
  4. N S's Avatar
    Greg,

    If I am not mistaken, there must be a visa number available both at the time of filing and at the time of adjudication of I-485. This is exactly what USCIS is saying right now through DOS and thats why they worked over the weekend to use up all numbers."We do not have any numbers available to accept the applications". Am I wrong? Also,In the WSJ article, Mr Aytes quoted that they have issued/allocated 147,131 visas. Being able to file for 485 and live on EAD/AP for "n" number of years is very appealing to the eye and I personally will be okay with it after what all of us have gone here. But we will have to go the drawing board again and again. Imagine EB3 India/China and the only way a 2007 PD will again become current is after 10-15 years, if they file for 485 today. Thanks to the per country limits, creating artificial diversity. All these people are here living and waiting on the system.

    The ideal solution would be to

    a) recapture the unused visa numbers
    b) allow DOS/USCIS to carry the numbers forward for atleast one year before they go wasted, so that they don't end up in ugly predicaments like this.

    I said "ideal" and not the easiest as we all know how difficult it is to get anything done with congress.

    Going back to your point of the DOS intention behind making current,I feel that its flawed. As a part of making USCIS to effectively use all the visa numbers, DOS made every category current. This action potentially would make 200K+ people (conservatively) be eligible for filing 485, when 60k numbers are available. As per your solution, these people will live on EAD/AP, but will continue to be the biggest hump on the back of USCIS in the name of backlog for ever, Which USCIS clearly don't want to happen. Lack of communication has resulted in making all categories current and the worst part is that the addendum to the VB came on Jul 2nd instead of some time in the last one or two days in June. We will get to know the rationale behind making dates current once we see the response from both secretaries to Rep Lofgren's statement or perhaps the AILF lawsuit.
  5. Greg Siskind's Avatar
    N.S. - A number must be available to file an adjustment and must be available to adjudicate. But DOS has the authority to say numbers are available for the purposes of filing. That's exactly what they did last month even though they knew USCIS would get and have to accept far more applications than numbers would allow. This would mean that the priority dates would retrogress - go backwards - but all cases received would remain pending until a visa number became available to complete adjudication. And that's exactly what people want. Pending adjustment applicants are entitled to employment cards. They can travel freely without having to renew visas at a US consulate. They can take advantage or portablity provisions and switch employers 180 days after an adjustment is pending. These are all key benefits. And DOS and USCIS have the ability to deliver this remedy without an act of Congress.
  6. legal's Avatar
    Wouldn't this go contrary to USCIS and DOS's goals of reducing the existing backlogs? My understanding is that USCIS wants to stop the practice of taking years to adjudicate a pending case, not only because they don't want to be buried in paperwork that takes years to clear, but also because many applicants are already successfully suing the agency when cases get stuck in the pipeline.

    I'm not an expert, but I remember existing precedents (e.g. search Wikipedia for "FBI Name Check") where judges have ruled that even 10 months is too long to wait for adjustment and have forced USCIS to quickly adjudicate the plaintiff's case. If that's true and USCIS were to start accepting applications for immediate benefits (such as EAD and AP), what is to prevent 140,000 people from filing now, and then in a couple of years suing the agency to get their green-card fast, despite the unavailability of visa numbers?

    I hope this issue gets resolved favorably for the people who applied in July and spent a lot of time and money to prepare their applications on time, but I doubt that such approach is viable for future months. Even the number of July applicants is probably so big (esp. India, China) that USCIS is completely unwilling to make any compromise despite the numerous lawsuit threats and all the press coverage.
  7. Greg Siskind's Avatar
    Legal - These cases won't be considered backlog cases for USCIS because they are being held in suspension due to priority date backlogs, not because USCIS hasn't gotten around to adjudicating them. Don't forget that what I'm suggesting is exactly what was going to happen just one week ago.
  8. legal's Avatar
    Greg - Is there any precedent for this in the past, i.e. AOS cases in suspension due to lack of visa numbers, or is this a new procedure that needs to be established?

    It is possible that DOS intended to do exactly that in July, but for one reason or another decided to change course. It could be that the CIR bill's defeat made them change their minds on relaxing high-skill labor immigration as well.

    Looking at past visa bulletins, however, doesn't confirm such interpretations. When the whole process of advancing priority dates started with the May 2007 bulletin, in Section F they clearly state that they're artificially bumping priority dates to increase demand and to use up all visas. Further, they warn that this could result in severe future backlogs, but that they would try to provide advance notification should this appear likely to happen. Similar explanations are given in the June and July bulletins as well.

    Unfortunately, the warning never came, and what USCIS did is a completely different matter. The events in the past few weeks confirm that there is a big disconnect and lack of communication between the two agencies. This further leads me to believe that they never intended to provide the kind of relief you mention, as such a solution -- making all dates current and putting applications in suspension while providing immediate benefits (EAD and AP) -- is something that would imply a concerted effort and good communication between DOS and USCIS.
  9. Greg Siskind's Avatar
    Legal - This has happened a number of times in the paat.
  10. N S's Avatar
    Greg,

    This is getting more and more interesting. AFAIK

    a) as long as a prospective immigrant has NOT filed a 485 application he/she is not a part of the backlog, even though he/she has an approved I 140 petition.

    b) Once the beneficiary files 485 application, his/her processing will start and stop as many times as his/her PD becomes current and not current or unavailable before adjudication. How ever, he/she is considered backlog because they have a pending 485 application, irrespective of the PD being current and not current. In fact the rest of the processing goes on simultaneously and USCIS will close the file on the day when they have the visa number.

    What you are saying here is news to me. Why hasn't AILA requested DOS/USCIS to accommodate the same proposal if the beneficiaries whose PD is not current is not a part of the backlog? (or) Have they done it with out any success? Is there any resource you can point us to which clearly says that USCIS is not counting the pending 485 applications whose PD is not current as a part of their backlog for reporting purposes? In other words, if the PD on an application becomes not current USCIS will put that into suspension mode and will not consider it backlog. That can be a major break through in pushing USCIS to accept these applications and put them in suspension mode.

  11. legal's Avatar
    N.S. - Implementing such a proposal would be the ideal solution but unfortunately USCIS is not very transparent about how it assigns numbers and processes documents, and for the time being they seem unwilling to do anything to right the situation.

    There are many questions about what happened in June that still remain unanswered, and a lot of fishy stuff probably went on. For example, I find it extremely hard to believe that all EB-1 numbers were used, especially for World and Philippines categories. I wonder where they found all those Nobel laureates in a couple of weeks. Or maybe they had been waiting for FBI Name Check for many years, and their turn suddenly came.
    Alternatively, USCIS may have transferred those "unused" EB-1 numbers to other categories, but since FY07 is not over yet, how did they know nobody would claim them in, say, August (esp. since no DOL application is present for EB-1 to track them down).

    I seriously hope the AILA lawsuit and others have any effect in negotiating something for those who were burned by the July update. Unfortunately, many people may not be able to get included as plaintiffs and can only hope for class-action benefits. For example, I have a couple of friends whose lawyers were hired by their sponsoring employers and are unwilling to allow them to participate as plaintiffs.
  12. Greg Siskind's Avatar
    NS - I think you are misunderstanding the term "backlog" as I am using it. USCIS considers a backlog case one where the benefit is available and they are taking more than six months to process. When a case cannot be completed because a visa number is not available, it does not factor in to the USCIS' backlog statistics. So if one files a case while their category is current and then the category goes backward, the case is no longer considered to be in the backlog again until the priority date is current.
  13. GC's Avatar
    Just to clarify:
    1. USCIS is very clever/defensive in defining what is considered a backlog. Non-availability of annual visa numbers is not the fault of USCIS. Thus those pending 485s from Indian and Chinese applicants will not be counted as backlogged.

    2.Immigration law blatantly DISCRIMINATES against people who were BORN in India and China. Same numbers for pools of 1 billion + population as for a country with a population of 2 mil. This DISCRIMINATION happens across the skill levels, EB categories. This is not meritocracy but artificial diversity visa. A MAN OR WOMAN CAN ACQUIRE SKILLS AND DEGREES BUT HOW CAN HE OR SHE CHANGE HIS/HER COUNTRY OF BIRTH?

    3. There is shortage of EB numbers for everyone; HOWEVER, because of discrimination suffered by Indians and Chinese rest of the groups are enjoying easier time. ONE HOPES EVERYONE WILL ASK THEIR CONSCIENCE AND ADDRESS THIS ISSUE. UNFORTUNATELY EXCEPT FOR GENTLEMEN LIKE GARY ENDELMAN ALL IMMIGRATION LAWYERS AND AILA HAVE BEEN SILENT ON THIS BLATANT DISCRIMINATION. Again because it benefits those other than INDIAN AND CHINESE.

    4.Some from rest of the world even say "I hope too many Indians and Chinese won't take up the numbers". UTTER NONSENSE. When you applied for the job were you hired for your skills or for where you were born? One can imagine or accept country quotas in family based immigration. Why should such nonsense should beused in EB immigration?

    5. Saying "July 485 filers will need EAD for 4-10 years, and so they should not be allowed even to get this benefit and they should ROT IN HELL" is a pathetic argument from USCIS. There are other benefits such as ability to change employers, etc. with pending 485, At least it dilutes to the unfair discriminatory immigration policies to some extent.
  14. In Immigration Limbo's Avatar
    GC,

    Could you explain how dropping the per country limits would not have the effect of VERY large populous countries like China and India taking the lion's share of the visas with few left for smaller countries? You said that fear was nonsense, but you didn't explain why it is nonsense. As far as I can see, it's simple math. China and India together represent about 2 billion people. The applications alone from these two countries could lock everyone else out of the system.

    I think you would have more luck arguing that the overall number of visas should be increased and any unused visas from other countries could be used by those from China and India. That's a no brainer and everyone would agree with you (except for maybe Jeff Sessions).
  15. GC's Avatar
    "you didn't explain why it is nonsense"

    To LIMBO:

    Actually I have explained in detail, but you wouldn't listen since the current discrimination against Indians and Chinese suits you. I don't expect you to listen then.

    The "solution" you kindly and magnanimously offer -overflow of unused numbers to India and China- is already in place and is of very little or no use.

    According to your logic a talented person with skills needed by the country, who was hired by a US employer, who has been lawfully working in this country for several years will swait for 5-10 years (this time line stretching beyond imagination now), behind pople born in other countries simply because of his place of birth.

    In that case why not limit the issuance of H1 B visa based on country of birth? AMAZING. HAVE SOME CONSCIENCE. FIGHT WITH YOUR PEERS BASED ON UR EDUCATION AND TALENTS, DONT DEPEND ON QUOTAS.
  16. INDIAN's Avatar
    the bogeyman used by immigration restrictionists and diversity fanatics is that Indian software companies hire only Indians and so Indians should ay the price for this.

    ENFORCE THE EXISTING LAWS. IMPOSE FINES ON THESE INDIAN COMPANIES. PUNISH THEM. PENALIZE THEM. BRIG NEW LAWS TARGETING THEM.

    Why should green card applicants who are not in the IT field should suffer for this? why should an architect, a doctor, a PhD biochemist faculty from India should suffer for whatever (if any) abuse may be happening in the IT / software field?
  17. Im Immigration Limbo's Avatar
    GC,

    I also said to increase the overall numbers for everybody, a point which you seem to have missed. 140,000 EB visas for a country the size of the U.S. is a complete joke.

    Saying that India gets the same number of visas as a country with 2 million people isn't really "explaining in detail". I will try searching the internet to see how the numbers are broken down and how the quotas work.

    It may be an inconvenient fact for you, but because of the sheer size of China and India, they would lock out everybody else if there were no quotas. You may not believe me, but I absolutely have sympathy for people from those countries, but I just see dropping caps as not being practical. We are all frustrated by the system I can assure you. Why not work to increase the number of people allowed in from India and China, but not at the expense of everybody else? Why should everyone else have to suffer for their benefit? Increasing their allotment without decreasing everybody else's seems like a better plan to me.

  18. go-go's Avatar
    Well, the immigration system isn't supposed to be fair, but to suit the needs of the country. What about all those diversity lottery visas? It always riles me up when I see people on DV lottery visas, who have trouble understanding their applications because of poor command of English, getting their green cards in less than a year, while at the same time others with PhD's have to wait 5-10 years to even file I-485.
  19. go-go's Avatar
    Well, the immigration system isn't supposed to be fair, but to suit the needs of the country. What about all those diversity lottery visas? It always riles me up when I see people on DV lottery visas, who have trouble understanding their applications because of poor command of English, getting their green cards in less than a year, while at the same time others with PhD's have to wait 5-10 years to even file I-485.
  20. GC's Avatar
    TO LIMBO:

    "it may be an inconvenient fact for you, but because of the sheer size of China and India, they would lock out everybody else if there were no quotas"

    Several facts inconvenient to YOU are staring at you, but you wouldn't look at them or wouldn't answer them. REFER TO THE QUESTIONS I HAVE ASKED IN THE PREVIOUS POSTS. SHOULD US COMPANIES HIRE PEOPLE BASED ON THEIR EDUCATION AND SKILLS OR BASED ON THEIR COUNTRY OF BIRTH???!!

    Again because the current DISCRIMINATION suits you and helps you to bypass and be ahead of the Indians and Chinese because of your birth.

    btw, WHAT MAKES YOU THINK I WILL BE OPPOSED TO THE OVERALL INCREASE IN EB GREENCARD NUMBERS????!!!!

    That issue is different from the current discrimination based on place of birth.

    yOU WRITE: "It may be an inconvenient fact for you, but because of the sheer size of China and India, they would lock out everybody else if there were no quotas"

    I assume you are employed in the US. It seems none of the 2 billion Indians and Chinese "LOCKED" you out. But then when it comes to greencard filing YOU would like to "lock out" the otherwise well qualified Indians and Chinese and get greencard sooner.



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