Before Applying for Immigration Benefits, Use FOIA

Please note: This blog post was originally published on Monday, November 16, 2009.

The Freedom of Information Act (FOIA) is an extremely valuable tool. It allows an immigrant and his attorney to see what information the government has about him in its files.

U.S. immigration laws are extremely complex. Formulating a successful immigration strategy can be compared to playing poker. Wouldn’t it greatly increase your odds of success if, before you placed your bet, you knew what cards your opponent was holding? Of course!

This is the beauty of FOIA. You can learn what materials about you are in the files of the USCIS and the Executive Office for Immigration Review (which consists primarily of the Immigration Courts and the Board of Immigration Appeals) before you submit an application for immigration benefits.

Let’s say, for instance, that you are applying for a green card through your job or through a relative. You overstayed your visa a few years ago, and an Immigration Judge ordered you to leave the U.S., which you did. However, you are unsure whether the Judge ordered you deported or whether he granted you voluntary departure. If you were deported, you are ineligible to return to the U.S. for 10 years, but if you left under voluntary departure, you are not subject to this bar.

If you simply apply for a green card, and learn at your interview that you are subject to the 10-year-bar, you could be in big trouble. When I worked as an INS Trial Attorney, I saw many people apply for green cards through their U.S. citizen spouses who did not realize that a Final Order of Deportation had been entered against them because they failed to appear for a deportation hearing. Often, this occurred because the Immigration Court sent the notice to an old address. Nevertheless, they were arrested at their interviews, and detained by the government while their lawyers attempted to reopen their cases.

Or imagine that you could only adjust your status in the U.S. if you qualify for benefits under Section 245(i). You think that your U.S. citizen aunt may have petitioned for your mother and the rest of the family back in the 1980s when you were a minor. The only problem is that both your aunt and your mother have passed away, and you have no proof that a petition was ever submitted. What is the solution? Order your mother’s immigration file under FOIA, and find out.

All in all, it often makes sense to obtain a copy of your file before you apply for immigration benefits.  Our law firm submits over 100 FOIA requests each year.

Here are a few things that you should know about FOIA:

1) There are no filing fees for submitting a FOIA application, although the government may charge you a small copying fee if your immigration file is huge;
2) If you are afraid that your file may contain negative information, you may wish to hire an immigration attorney to obtain and review your file. The attorney does not have to reveal your address on the FOIA application;
3) The USCIS often withholds certain parts of your file from you based on exemptions specified in the FOIA law. However, you have a right to appeal the USCIS’ decision;
4) I have yet to see a case where EOIR withheld any part of the file from the applicant;
5) If you are undergoing removal proceedings, you are entitled to receive your FOIA file more quickly; and
6) The processing times for FOIA requests to the USCIS have dropped from one year at the beginning of 2009 to four months currently. EOIR often processes FOIA requests in just two to three months.

Having worked for the INS, and since 1982, in private practice, I believe that it is better to be safe than sorry. If you or your immigration attorney have the slightest doubt about your eligibility for immigration benefits based on something that may be in your government file, you should first submit a FOIA request and obtain a copy of your file.

For more information about the Freedom of Information Act, see our “FOIA” page at:

 http://shusterman.com/foia.html

USCIS Errors: Who Should Bear the Burden?

Please note: This blog post was originally published on Saturday, November 7, 2009.

Is a person who was deported almost 30 years ago, and returned to the U.S. without inspection a year later, subject to the permanent bar under the 1996 immigration law?

The 1996 law created the permanent bar to immigrating to the U.S.  Section 212(a)(9)(C)(i)(II) provides as follows:

“(C) Aliens unlawfully present after previous immigration violations.-

(i) In general.-Any alien who-

…(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.”

The question is whether or not this section of law is retroactive.

Our client, Mrs. Santiago (not her real name), entered the U.S., was deported, and then returned to the U.S. without inspection in the early 1980s. Did this subject her to the permanent bar?

We think not, yet recently the USCIS denied her Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212), on the grounds that a person who is subject to the permanent bar is ineligible to have an I-212 granted under two separate BIA decisions. However, neither of the cited decisions involves a person who was deported and then returned to the United States prior to the effective date of 1996 law.

We searched for the answer to this question on the new USCIS website. First, we looked at the Neufeld memo of May 6, 2009 entitled “Consolidation of Guidance Concerning Unlawful Presence Under Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I)”. However, since the portion of section 212(a)(9)(i) that allegedly makes Mrs. Santiago inadmissible is subsection II, rather than subsection I, the Neufeld memo did not answer our question.

Next, we looked to the USCIS’ Adjudicator’s Field Manual for guidance. We compliment the USCIS for posting a copy of the Manual online. This saves immigrants and their attorneys from having to spend $150 to buy the book which contains the Manual. Also, it is easier to navigate the online version of the Manual since it is searchable.

We link to the USCIS Adjudicator’s Field Manual from our “USCIS” page at 

http://shusterman.com/ins.html#1a

Unfortunately, the Manual also fails to deal with the issue of retroactivity of subsection II of the permanent bar.

So, is it possible to find an answer to our question on the Web?

We did a Google search, and found several web sites (including our own) which contain an INS memorandum entitled “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act (Act)”, written by General Counsel Paul Virtue, which answers our question.  See our “Unlawful Presence and the 3/10 Year and Permanent Bars” page at

 http://shusterman.com/bars.html#1

The Virtue memo states as follows: “Section 212(a)(9)(C)(i)(II) of the Act applies to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the United States unlawfully any time on or after April 1, 1997.” Eureka! The permanent bar is not retroactive and, therefore, does not apply to Mrs. Santiago.

We find it troubling that the Virtue memo is apparently absent from the USCIS’ new website even though it is the only guidance regarding this issue emanating from the agency during the 13 years since the law was enacted.

The agency has no regulations which implement this section of law, and does not guide its officers as to the proper interpretation of the section 212(a)(9)(c)(i)(II) in its Adjudicator’s Field Manual.

It is no wonder that the USCIS examiner mistakenly assumed that the permanent bar applied to Mrs. Santiago. And, or course, the only way for the Service’s mistake to be corrected is for Mrs. Santiago to pay the USCIS to file an appeal.

This is obviously unfair to Mrs. Santiago. There must be a better way.

We suggest that:

(A) USCIS.gov be revised so that all policy memoranda appear on the website;

(B) The Adjudicator’s Field Manual be updated to reflect the guidance that was given to the field in 1997 by the USCIS’ General Counsel’s office; and

(C) Where clear Service error results in a denial of benefits, that the filing fee be returned to the applicant.

H-1B Surge: OPT Students, Listen Up!

Please note: This blog post was originally published on Wednesday, November 4, 2009.

Last year, employers submitted so many H-1B petitions, the USCIS had to pick the winners by lottery.

This year, seven months after the opening of the filing season that started on April 1st, the H-1B cap has yet to be reached. However, the numbers may not last long.

During the first week of April, the USCIS received almost enough H-1B petitions to fill the 20,000 cap for persons with advanced degrees, but only 43,000 petitions against the 65,000 general cap.

Over four months later, only 2,000 more H-1B petitions had been approved. Why so few?

It’s the economy, stupid!

But apparently, despite all the gloom and doom over the high unemployment rate, U.S. employers are again starting to hire professional workers. Between September 25 and the end of October, the USCIS approved over 7,000 additional H-1B petitions bringing the total to 53,800 and forcing advanced degree professionals to compete for numbers against those with Bachelors degrees. We are tracking each new USCIS announcement with our two charts at:

http://shusterman.com/h1bcap10.html

At this rate, the H-1B cap may be reached in January, maybe even by Christmas!

Who should act quickly to claim an H-1B number? Students working using Optional Practical Training (OPT). When you have a one-year work permit in your hand, and can easily move from employer to employer, it’s easy to become complacent.

However, if the H-1B cap is reached in a matter of weeks, imagine what may happen next April Fools’ Day? Yes, another H-1B lottery. And a lot of OPTs would have to return home.

So if you graduated from a university in the U.S. with a Bachelors, Masters or a Ph.D., don’t rest on your EAD. Ask your employer to sponsor you for an H-1B, and do so ASAP.

We Give the New USCIS Wesbite a "B-"

Please note: This blog post was originally published on Friday, October 2, 2009.

The newly revamped USCIS website went online on September 22.

It is definitely an improvement over the prior website.

For example, it is geared to the person who needs information about immigration. On the left side of the screen appear the words “Where to Start”. This allows you to click the arrow next to the words “I am…” and provides you with 21 choices ranging from “U.S. citizen” and ending with “Educator or Volunteer”. Below are the words “I want to…” Depending on which of the 21 categories you choose under “I am…”, the choices under “I want to…” will vary accordingly.

If you choose “I am a visitor/nonimmigrant”, you will be given seven choices in the “I want to…” category. Some of these categories allow you to learn more about becoming a permanent resident through investment, employment, the lottery or as a religious worker, but nothing about becoming a permanent resident through a family member. This is obviously an oversight which we hope will be quickly corrected.

Suppose you choose “I want to find out about becoming a permanent resident (green card holder) through employment”. You must click the green button which states “Get Results”. This brings you to a page entitled “Green Card Through a Job”. A short article about employment-based immigration appears in the middle of the page. Over to the left, there are links to web pages on the following topics: “Green Card Through a Job Offer”, “Green Card Through Investment”, “Green Card Through Self-Petition”, and “Green Card Through Special Categories of Jobs” as well as links to other ways to obtain a green card and green card processes and procedures.

The right side of the screen contains a column entitled “More Information” with the following subtopics: “Forms”, “Tools – Before I File”, “Tools – After I File”, “Other Cases Services”, “Other USCIS Links”, and “External Links”.

All in all, the new USCIS website appears to contain more information than did the old website. Further, it is arranged in a fashion that is much more user-friendly. We link to the new website from our “USCIS” page at:
 

http://shusterman.com/ins.html#1

Another significant improvement to the new website is that there is a Spanish-language version of the site. It is plain to see, however, that many pages which are available in English are not available in Spanish. For example, the Spanish “Soy…” option only contains four possibilities as opposed to the 21 choices for the English “I am…”. Hopefully, this will change over time. We link to the Spanish version of the website at:
 

http://shusterman.com/cis_espanol.html

The website allows users to get e-mail updates, text messages on their smart phones regarding the status of their cases, has an RSS feed and multimedia. I watched a video entitled “Becoming a U.S. Citizen: An Overview of the Naturalization Process”. As a former INS Citizenship Attorney (1976-82), I was impressed by the quality of the information presented. We link to the page which allows persons to create an account in order to check their case status and to learn the current processing times from our “USCIS” page at:

http://shusterman.com/ins.html#2

Not everyone is impressed with the new website. When I requested a short evaluation of the site from a member of my staff, I received the following:

“The main change to the USCIS website is the layout. The contrast in colors is pleasing to the eye and adds the illusion that the site is that much more organized. What is much more organized is the homepage. The topics that seem to be of main interest to visitors are nicely laid out. However once you click on the topic, you are connected to a page with basic information and on each side there are links that might confuse the visitor at first. After touring around the redesigned site, the visitor realizes that the same links practically exist on every page with minimal change. I don’t think USCIS is providing its visitors with more information, it’s just that the same information has moved!”

I don’t know that my evaluation of the new website is as harsh. However, I do have some problems with the new website.

On August 15, a few weeks before the new website went online, we wrote “USCIS’ Redesigned Website: Our Suggestions”. See:

http://carlshusterman.blogspot.com/2009/08/uscis-redesigned-website-our-suggetions.html
Did the new website adopt any of our suggestions? Read on.

* Suggestion # 1 – Please do Something to Improve the Search Engine

As a trial, we typed in the words “L status” into the search engine and got ten results. However, none of the results led us to a page discussing what L status is and how to obtain it. Is there such a page on the USCIS website? Perhaps the search engine still needs some work. Until USCIS improves its website and search engine, feel free to go to our “Intracompany Transferees L-1 Status” page at

http://shusterman.com/l-vsa.html
* Suggestion # 2 – Make the Website Easier to Navigate

Failing to find any information about L status by clicking “Resources” near the top of the new website, we typed “Nonimmigrant Categories” in the search engine, and with a bit more effort, found the following 162-page PDF file about nonimmigrant status.

Was this information available on the old website? We don’t know. However, why not simply add an easy-to-locate “Nonimmigrant” section on the new website?

* Suggestion # 3 – Make the New Website as Good as the 1999 Website

Here, we searched for the four Nationality Charts. The term “Nationality Charts” yields no results in the search engine. Similarly, opening “Citizenship & Naturalization Based Resources” on the left side of the screen fails to reveal any information regarding obtaining U.S. citizenship through one’s parents, through derivation or acquisition. However, a google search revealed that the Nationality Charts are still on the USCIS website located in the Adjudicators’ Field Manual. But why torture yourself? We link to all four Nationality Charts on our “Citizenship” page at

http://shusterman.com/toc-usc.html#6
* Suggestion # 4 – What’s with the Long URLs?

On the new website, the URL for “Information for Employers and Employees” is

http://www.uscis.gov/working-united-states/information-employers-employees/information-employers-and-employees

Need we say more?

* Suggestion # 5 – Help Immigrants and Their Employers Find Good Legal Advice

Under the heading “Humanitarian Benefits Based Resources” on the left side of the screen is the listing “Finding Legal Advice”. The new website, like the old, still links to the EOIR “List of Free (sic) Legal Service Providers”. As we explained in our blog, this is both misleading and untrue.

Does the new website link to the list of “Certified Specialists in Immigration and Nationality Law” as they promised me in 2006? See:

http://shusterman.com/pdf/certsp1106.pdf
Of course not!

All in all, the new USCIS website is an improvement over the old website, but much more remains to be done.

We give the new USCIS website a “B-”

Hopefully, the new website is a work-in-progress. Send your comments to

mailto:uscis.webmaster@dhs.gov

New Law Will Protect Surviving Family Members

Please note: This blog post was originally published on Wednesday, October 21, 2009

On October 20, the Senate followed the House of Representatives in voting to protect surviving family members when either the petitioner or the principal beneficiary of a petition dies. President Obama is expected to sign this legislation shortly.  We link to the bill (H.R. 2892) from our Immigration Legislation page.

Presently, the law provides that when the petitioner or the principal beneficiary dies, so does the petition.  Typically, if the beneficiaries are present in the U.S., their applications for adjustment of status are denied and they are placed in removal proceedings.

There are few options for surviving relatives:

For example, there is a section of the law which provides that a surviving spouse of a U.S. citizen can self-petition for permanent residence, but only if the marriage occurred at least two years before the petitioner’s death.

There is also a regulation which provides that, where the petitioner of a family-based petition dies before the beneficiaries of the petition became permanent residents, the beneficiaries may request that the USCIS reinstate the petition for “humanitarian” reasons.

WHO WILL BENEFIT FROM THE NEW LAW?

Not only does the new law eliminate the infamous “widow penalty”, it does so much more!

When either the petitioner or the principal beneficiary dies, in a wide variety of instances, the law acts to protect the surviving family members:

1. Parents, spouses and children of a U.S. citizen with pending or approved petitions;
2. Beneficiaries, principal or derivative, of pending or approved family-based petitions;
3. Beneficiaries, principals or derivative, of pending or approved employment-based petitions;
4. Beneficiaries, principal or derivative, of pending or approved asylee/refugee relative petitions;
5. Nonimmigrants entitled to “T” (trafficking victims) or “U” (crime victims) status.

Since the waiting times for family-based and employment-based preference can range up to between five and 22 years, often petitioners and principal beneficiaries die before the beneficiaries of the petition can obtain permanent residence.

In explaining how the new law would operate, let’s use the following examples:

Example 1: Family-Based Petition

Ms. Santos’ sister, a citizen of the U.S., petitioned for her over 20 years ago. At that time, her children were four, two and one year of age.  Ms. Santos and her husband work as technicians in the U.S. By the time her priority date became current, her children were 24, 22 and 21.

The INS took two years to approve the visa petition. Since the length of time that the visa petition was pending can be subtracted from the age of her children under the Child Status Protection Act, the “immigration ages” of her children are 22, 20 and 19. Therefore, the youngest two are still considered to be children for purposes of adjustment of status, and the older child must wait for a final resolution of the proper interpretation of CSPA’s “automatic conversion” clause.

Ms. Santos, her husband, and her two youngest children all apply for adjustment of status under section 245(i). However, shortly before their interview takes place, her U.S. citizen sister dies.  Under current law, Ms. Santos’ only remedy would be to apply for “humanitarian” reinstatement of her petition from the USCIS, an “iffy” proposition.

Under the new law, she and her family (except possibly her oldest child) would be protected as “survivors” and would be allowed to continue with their applications for adjustment of status despite the death of her sister.

Assuming that Ms. Santos and her family members are all eligible for adjustment of status, the only way their applications can be denied is if the USCIS denies the visa petition by determining that its approval “is not in the public interest”.

Also, since Ms. Santos’ sister has died, another sponsor for an affidavit of support is needed.

Example 2: Same Scenario as Above, but Ms. Santos and her Family are Abroad

If Ms. Santos and her family are abroad on the day that her sister dies, the petition will be revoked by the USCIS. The family’s only recourse is to request a reinstatement of the visa petition on “humanitarian” grounds.

Example 3: Same Scenario as Above, but Ms. Santos, not her Sister, Dies

If Ms. Santos dies before she and her family are able to adjust status, the new law provides that the petition remains approved unless the USCIS determines that this “is not in the public interest”. Her husband and the youngest two children can adjust their status to permanent residents.

This represents a clear departure from previous laws which would have resulted in the denial of adjustment of status applications for her husband and children, and placing them under removal proceedings.

Is there any remedy for the family under this scenario if Ms. Santos’ family had remained abroad? Unfortunately, the answer to this question is “no”.

Example 4: Employment-Based Petition

Dr. Kumar is a physician born in India. His wife and daughter reside with him in the U.S. He is in H-1B status. His wife and daughter are in H-4 status. Dr. Kumar completed his medical residency in the U.S. on a J-1 visa. Then, for three years, he worked in a medically-underserved area in H-1B status.

In 2006, his employer submitted a PERM application on his behalf. It was approved in the Spring of 2007. In July 2007, when all the employment-based numbers became current, Dr. Kumar’s employer submitted an EB-2 visa petition on his behalf. Simultaneously, Dr. Kumar, his wife, and their daughter all applied for adjustment of status. Then his priority date retrogressed.

In 2009, Dr. Kumar was killed by a drunk driver. Under present law, the visa petition would be revoked. Under the new law, Dr. Kumar’s wife and daughter would be permitted to continue with their applications to adjust status. The visa petition could only be revoked if the USCIS determined that its continued approval would not be “in the public interest”.

ELIMINATION OF THE “WIDOW PENALTY”

What follows is some advice for surviving spouses and children under the portion of the new law which relates to widows of U.S. citizens and their children:

How Can I Benefit from the New Law?

Under the new law, all surviving spouses can apply for themselves and their children for green cards.  The new law eliminates the two-year marriage requirement for self-petitions.

If you are physically present in the U.S., file an I-360 self-petition together with an I-485 application for adjustment of status.

If you reside abroad, file an I-360 self-petition and follow the normal immigrant visa procedures.

In either case, it is incumbent upon you to submit the I-360 within two years of the law’s passage, and to demonstrate that the marriage was bona fide.  Include wedding photos, proof of joint assets, etc.

If your spouse dies more than two years after the law’s enactment, your I-360 must be submitted within two years of your spouse’s death.

There is no affidavit of support required. However, you must demonstrate to the government that you are not likely to become a public charge.

Also, if you remarry, you will lose your eligibility.

How Can My Children Benefit from the New Law?

Your unmarried children may be included in your I-360 self-petition.

Remember that although the law defines “children” as unmarried and under 21 years of age, the Child Status Protection Act (CSPA) may allow your child’s age to be “frozen”.  As a general rule, if the I-130 or I-360 petition was submitted prior to your child’s 21st birthday, they will continue to be considered a child no matter how old they are when the USCIS decides their application for a green card as long as they remain single.

For more information about CSPA, see our Child Status Protection Act FAQ.

CONCLUSION

The new law will provide immigration benefits to “survivors” in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents.

However, the law is complex, and the extent of its benefits will not be known until after the USCIS and the State Department promulgate regulations, or issue memos, explaining how they plan to implement the new law.