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Greg Siskind on Immigration Law and Policy

FULL-BLOWN SCANDAL

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[NOTE: A hat tip to my friend Jay Solomon for tipping us off on this story]



What started out as a story of mean-spiritedness at USCIS regarding efforts to head off accepting visa applications in July may be turning in to a serious scandal that involves blatant disregard for the law and a potential jeopardization of national security.



The American Immigration Lawyers Association and others are reporting that USCIS adjudicators were issued instructions to pull for processing every employment-based case that had been pending for more than six months regardless of whether security clearances had been completed. Officials worked at a frantic pace over last weekend to request visa numbers on all these cases in order to head off accepting any cases when the first business day of the month began yesterday.



USCIS would have had to have requested numbers in about 60,000 cases in order to exhaust its numbers. The big question is whether the agency finished security clearances on all those cases, something that seems impossible given how long security clearance backlogs have been. These delays have been well-documented and are the basis of mandamus cases all across the country.



So assuming security clearances were not received, that leaves one of two possibilities:



a. USCIS was going to approve these cases without getting a security clearance or



b. USCIS was not really finished with the cases and was requesting visa numbers before they were really finished with the cases.



 



If the first is true, this will be front page news around the world and there will likely be resignations at the agency. While this may be the juicier story, the second is the more likely explanation.



But even if USCIS intended to finish the security clearances before issuing actual approvals, this is still a violation of the law.


By law (8 USC Section 1255), a visa number should not be claimed by USCIS until an
applicant's adjustment of status application has been granted. 



If any of you have heard anything that would tend to support this, please let me know.

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Comments

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  1. MBabbel's Avatar
    But isn't it USCIS policy that if the FBI background check does not clear in 6 months or yields no results or is stuck for more than 6 months, then the case should proceed for adjudication?
  2. N S 's Avatar
    Yes, I was under the similar impression as MBabbel. What can they do about an applicant about whom FBI has not heard of in any way? I considered it as a way of saying that this applicant does not have any record of wrong doing. Looks like I am wrong as you are saying that they can't go ahead with adjudication until security check is cleared. If you look at people who have been approved in the past 15-18 days, all these have PD's of 2003 and 2004 and most of them have filed for 485 before the retrogression hit EB2 and EB1 categories for all countries.


    This is getting more juicier than every one thought it is and could potentially become a hot button issue. I hope that the so called powers recognize the root cause of issue and recapture wasted numbers from previous years and allow carry over of left over visa numbers. This will not put USCIS, DOS & US in ugly predicaments like the one we are in now
  3. K K's Avatar
    I am one of the people impacted by the fast one pulled by USCIS and DOS. Legal high skilled immigrants like me have spent on average of 2-3 thousand dollars preparing our applications. Only to be rebuffed and shocked at the rejections on the very first day of July.

    This is an unprecedented action. Its hard to believe an agency which is raising fees to supplement and improve its performance was apparently able to process so many applications in 15 days! The number is apparently close to all the visas they have processed in the first 10 months of the year.
  4. adassd's Avatar
    Greg

    What will happen to the applications received before the revised Visa bulletin was released on July 2nd? (before 10.30am?)

    Technically the priority dates were current from midnight July 1st till the revised visa bulletin was released.
  5. Googler's Avatar
    But isn't it USCIS policy that if the FBI background check does not clear in 6 months or yields no results or is stuck for more than 6 months, then the case should proceed for adjudication?
    Absolutely not -- why do you think people are pickling in the name check process for years??
    See http://en.wikibooks.org/wiki/FBI_name_check


  6. bull's Avatar
    Here is approval for somebody on Monday, july 2 who was not current in June. He is EB3, India June, 2004. How can this happen?

    aarun's Immigration Cases

    I-140/I-485 case: Approved in 915 days (700 days more than average*) ( 10 comments)

    User: aarun Labor Filing Date: 02 Jun 2004
    Service Center: Nebraska Category: EB3
    USCIS Receipt Date: 29 Dec 2004 USCIS Notice Date: 11 Jan 2005
    I-140 Processing: regular I-140 Approval Date: 25 May 2005
    Fingerprinting Date 1: 10 Feb 2005 Fingerprinting Date 2: 15 Aug 2006
    RFE: no RFE Reply Date:
    I-485 Status: approved I-485 Approval Date: 02 Jul 2007
    Name Check Status: not sure Name Check Approval/Denial Date: N/A
    Card Ordered Date: 02 Jul 2007 Card Received Date:
    EAD Approval Date: 25 Sep 2006 AP Approval Date: 25 Sep 2006
    Nationality: India Last Updated: 3 hours 9 minutes ago

  7. Sridhar's Avatar
    I agree with this story. There is definately something fishy the way the USCIS and DOS has handled the situation. First of all this has never happened before and even if it happened it cant become current for all categories and all countries in just one month and give hope to lot of people. People who are waiting for more than five years had a chance to apply for I-485 and a sudden change on July 2nd has ruined all the hopes. DOS needs to give a better explanation on this. It just cant give hope and take it back in matter of 15 days.
  8. Leo's Avatar
    E-mail The Senate, Congress, The white house, Even Lou Dobbs at CNN who covers immigration ever night http://www.cnn.com/CNN/Programs/lou.dobbs.tonight/
    let us be heard because unless we shout loud enough no one is going to listen.
  9. KP's Avatar
    I am totally shocked by such low behavior from USCIS/DOS. I do not able to understand that if they can change visa bulletin any time without advance notice, then what is the point to publish it ahead of time? From where people should get guidance whether to start preparing application to file next month? This is just punishment of being Legal and following laws in this country!! Based on visa bulletin they published on June 13, lot of people cancelled flights, called their families from their home countries, cancelled trips / vacations, took off to collect bunch of documents from here / home countries, performed medical tests, paid attorney's fees and much more. I think average applicant paid $3000 (I paid slight more than that) to complete my application and now everything goes in vein plus lots of frustration and trauma we got by suddenly making all categories unavailable by USCIS. Myself and my spouse had master's degree from US and living in this country from almost 10 years but with very inefficient and unpredictable USCIS/DOS, its really hard to predict when will we really get our green card.

    I hope congress take this issue very seriously and act against USCIS / DOS officials responsible for making this debacle happen to regain integrity of current system!!
  10. Sam's Avatar
    Are you suggesting that all the approvals for this month should be taken back? Won't that be total mess.
  11. KRV's Avatar
    Why did they wait till July 2nd to issue a REVISED visa bulletin. What does it take a person to realize that there are millions of people like me out there that will do what ever it takes to collect all the required documents (not to metion the hectic work schedule immigration Attorneys and their staff had gone through these past few weeks) and mail them for July 2nd receipt at USCIS centers. If they saw a reason to revise the bulletin, why did they not revise the bulletin on Friday, June 29, 2007. I still cannot understand/imagine of one thing that would have changed from the time they left the Office on Friday to the time they came back on Monday , July 2nd (if they worked weekends to use up all the numbers than that is another thing that would make them qualify for a CAPITOL punishment). AGAIN they simply do not understand what LEGAL immigrants face day in and day out and also the effect their actions bring upon us.

  12. Kansan's Avatar
    "By law (8 USC Section 1255), a visa number should not be claimed by USCIS until an applicant's adjustment of status application has been granted."

    I am not sure if this is true. Please see the passage below from CIS Ombudsman's annual report 2007 (Page 36-37):

    "In the 2006 Annual Report (at p. 16, AR 2006 -- 02), the Ombudsman also recommended that USCIS assign visa numbers to employment-based green card applications as applicants file them. The Ombudsman continues to recommend that USCIS work with DOS to reinstate that process which existed in the early 1980s, wherein DOS issued visa numbers for both employment and family-based applications for applicants as they applied rather than as they were approved. This process would ensure that USCIS does not accept more applications than the number of visas available."

    From what the Ombudsman says above, what USCIS did - if it's true - is not against the law.

    Thoughts?
  13. Greg Siskind's Avatar
    The Ombudsman recommendations frequently require legislative and regulatory chganges. In addition to the statute, another issue is 8 CFR 245.1(g) which seems to have been violated.
  14. Greg Siskind's Avatar
    The Ombudsman recommendations frequently require legislative and regulatory chganges. In addition to the statute, another issue is 8 CFR 245.1(g) which seems to have been violated.
  15. Kansan's Avatar
    Ombudsman's report alludes that this procedure - of allocating visa numbers as the applications are filed (rather than approved) - existed in 1980s. Has the law been changed?

    I will read up on 8 USC Section 1255 & 8 CFR 245.1(g) to understand more. Any suggestions as to where I can read them?
  16. TrappedInGCChakravyuh's Avatar
    I and my family have spent 7 years "legally" in this country following every law respectfully and cautiously.. paying heavy taxes and having tough time switching/finding jobs on H1- tarnsfer.. very few opportunities for H1-Transfers- "lawful discrimination in the land of justice". plus immense pain and stress of working "fearfully in modern times". We were almost packing up from this Karambhumi and thinking of going back to Janambhumi, that 13th June bulletin - caused a positive change in our next step forward.And on top of all this when a little ray of hope showed we have this new July bulletin drama. WE ARE DONE NOW. Should be packing by now, right?. BUT we have decided to watch the drama more closely and even participate in the 'legal fight' in the 'land which is heard for its justice'. But one question for intelligent and experienced minds.. do you think the guys who are going to file 485in the month of July , after 2nd July noon, would actually get the benefit of the almost winning legal fight? because technically USCIS posted unavalibility and as per that they are righfully going to reject. OFCOURSE HOW THEY CAME TO THIS SUDDEN CONCLUSION AND CALCULATUION right over the weekend is really unbelievable. Some one posted above right.. why they could not have told of unavailability of visas right on June 29th. Lot of questions !!!
  17. KP's Avatar
    What will happen to the applications received before the revised Visa bulletin was released on July 2nd? (before 10.30am?)
    Technically the priority dates were current from midnight July 1st till the revised visa bulletin was released.
    -------------
    Called uscis and asked what happens to the app already received by them?

    The rep put me on a hold..(guess went and asked somebody) and answered that all the app received will be put on hold(not returned) and said they will not process ead/ap too.Di anybody else tried calling and ask the same?did they tell the same thing?Just want to know if i interpreted it right?

    For anyone interested in calling themselves here is the info: 1-800-375-5283 options 1, 2, 3 (and possibly 6 after that-I can't remember).

    Thanks.
    -------------------------------

  18. AMP's Avatar
    Greg,

    I agree to your post. I do feel option (b) is more likely scenario than (a). In my case, on my I140 approval (approval date Nov-2006), I already have an A#. As far as I knew that A# is the permanent locator for alien registration. If that is the case and assuming option (b) is true, then, USCIS should be able to accept applications for AOS if they already have assigned an A#.

    I know from other immigration related sites that, USCIS has assigned A# for some of the I140 approvals.

    I fail to understand how in the world can the same number of staff members have approved nearly 20 to 30K cases - assuming 2-3 visa numbers per case - in the month of June. On June 13th, visa numbers well over 40K were available based on estimates published on some sites.
  19. Sevadal99's Avatar
    Its very pathetic to know
  20. My two cents's Avatar
    My brothers I-485 was approved on June 28th, he had applied in 2004, and yesteray he got his card in the mail. When he checked his status in May it still stated that his case is in name check, then on June 28th, he had his approval. His name check had been pending for a while. It was a pleasent surprise, but something strange is going on, it does'nt look right. I was suppose to apply in July, my PD is Feb 2004, Rest of the World EB3, and now I wait. I'm thinking my chances of getting a GC is higher through my US citizen daughter when she turns 21, then through employment, and my daugther is only 2 right now. This is hopeless.
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