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US IMMIGRATION UPDATES
IMMIGRATION / NOV 1999 |
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INS PROCESSING DELAYS AND HOW TO LIVE WITH THEM |
By Vanessa S. Barcelona
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INS
processing delays are at an unprecedented rate at this time.
They include pretty much every petition across the board.
Understandably, not only does this result in a heightened sense
of alarm and impatience on the part of immigration lawyers, but
of course, the same holds true for the clients waiting and
waiting and waiting for their papers to come through. |
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The bad news is, it looks like there is a dark cloud
hovering over us and it will not go away for quite some
time. The good news is, INS recognizes these delays and
is receptive to making the changes necessary to
alleviate these backlogs.
Case in point: Naturalization delays in the past few
years have worsened to the point that some applications
have been pending for as long as three years. Of course,
clients would be a little bit more understanding if they
saw a light at the end of the tunnel.
But what if you
have not heard from INS at all and do not know if your
application is sitting in a box somewhere without any
hope of seeing the light of day, or at least, the desk
of an interviewing officer? Y
ou must follow up with the
INS regional office with whom you filed the N-400 in the
first place. Contact an attorney in your area, to obtain
the fax # of the INS for specifically this purpose
(status inquiry).
For those of you living in Florida and
have filed with the INS regional office in Texas, here
is the number to fax your inquiry:
214-767-7405 or 7406. Other jurisdictions covered by the
Texas Service Center include, in addition to Florida,
the following states: Alabama, Arkansas, Georgia,
Kentucky, Louisiana, Mississippi, New Mexico, North
Carolina, Oklahoma, South Carolina, Tennessee, and
Texas.
Once you have done this, and have not received a reply
within 2-3 weeks, it may be best to contact the local
INS office where you will be interviewed once the file
has been processed by the regional office.
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The Miami INS has a great way to follow up on
naturalization inquiries. Attorneys who follow up on
behalf of their clients are scheduled for a one-on-one
meeting with an INS officer, who will be meeting with
them with the client's file in front of them. This is
done by making the request for a meeting at least 1 week
in advance, to give enough time to have the file
requested from the regional office, if it has not made
it to the local office at that point.
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The reason for the delay is then ascertained, and hopefully cured.
The client should then expect an appointment letter in the next few
months. INS also has a 1-800 number that you should call if you have
moved to a different address (this applies to naturalization cases
only, and for moves within the State of Florida): 1-800-375-5283.
Adjustment of status applications are a different matter, however,
and we should expect to live with delays for quite some time. Delays
in the processing of these applications are alarming, to say the
least. In August of 1999, the INS acknowledged that the backlog in
pending adjustment of status applications had increased from 121,000
in Fiscal Year 1994 to 811,000 by the end of FY 1998. INS, however,
is not immune to the problems caused by these delays, and have made
processing naturalization and adjustment applications among its
highest priorities.
What do we do in the meantime?
If you are filing an adjustment of status application, and have
children who will be "aging out" (i.e., turning 21) in the near
future, make sure to notify INS in LARGE, BOLD PRINT on the front of
your adjustment package. This also works when sending I-130
petitions to INS for minor children who will need to be processed at
a foreign consulate prior to their 21st birthday. INS, however, has
stated that while it will do everything possible to adjudicate in a
timely manner, such applications when filed at least 6 months prior
to the minor child's 21st birthday, not much can be done -- nor
expected -- if the application is filed within 6 months of the
child's birthday. If this is an issue, therefore, one may very well
have to consider the prospect of consular processing as an
alternative to filing an adjustment of status application.
The concept of "consular processing" has in the past few months,
been revisited by immigration practitioners who would have otherwise
shunned this option in situations where the client is already in the
U.S. Why, after all, would you go through the hassle of travelling
half a world away only to be faced by a consular officer whose
denial could mean the end of all your hopes and dreams, without the
possibility of an appeal? For one thing, consular processing -- at
this time -- is a faster way to a green card than adjustment of
status is. Second, if you make sure that you do everything right --
in other words, have all your ducks in a row -- the results should
not be disappointing. It has been reported that over 50% of denials
for immigrant visas at the Manila post are caused by deficient I-864
Affidavits of Support.
Consular officers in Manila have been, in my experience, fair for
the most part, and more accessible than many other consular officers
in other posts.
Manila, thank goodness, has also resurrected the concept of the visa
applicant's right to counsel, and attorneys are now able to stand in
line with their clients and be with them during the interview. This
concept is simply unheard of in many consular posts.
Manila has also
done a very good job, from my experience, in expediting cases where
the applicant will turn 21. While they do make attempts to track
these cases and expedite when necessary, do not rely on this! Make
sure to make it clear with every package sent to the consulate that
the applicant MUST be interviewed before a certain date.
Also, make
a note of when the package should get there, and call to follow up
after such time as you are sure they have received the package. For
immigrant visa applications, it is best to call after 10:00 a.m.
Manila time. When calling from the U.S., dial: 011-632-523-1001.
Dial
"O" for the operator immediately, to save on long distance charges,
and then when the operator comes on, ask to be transferred to the
Immigrant visa
section (or non-immigrant) Tip: While a K-1 Fiancee visa is
technically a non-immigrant visa, it is processed as an immigrant
visa, and you should
therefore ask to speak with an immigrant visa officer.
If you should opt not to brave the unfamiliar world of consular
processing and do not mind the long wait for the green card while
under adjustment proceedings in the U.S., you must make sure that
you file your work authorization extensions on time.
While it was
possible to get your work authorization cards within 1 month of
filing at some time in the past, at the moment it is taking INS more
than the legally allowed 90-day processing period for these
applications.
Make a conscientious effort to file at least 90 days
before your card expires.
INS at this time is interpreting 1 day of
work without authorization -- even for those with adjustments
pending -- to constitute 1 day of "unlawful presence".
For those
adjusting under 245(a) -- minor child, spouse, or parent of a U.S.
citizen who did not enter with a C-1D or without papers -- this is
not an issue. For those who are adjusting under 245(i) and have
already paid the $1000 penalty -- this is also not much of an issue.
But for those who were in lawful status at the time of filing --
having INS count days of "unlawful presence" to include days you
worked without a work authorization card even after your adjustment
was filed may mean the difference between the lesser evil of having
to pay a $1000 fine later on (if you CAN adjust under 245(i)), or
worse, not even being able to adjust status at all. BE AWARE OF THE
POSSIBILITY THAT YOU MAY NOT BE ABLE TO ADJUST AT ALL FOR HAVING
WORKED WITHOUT AUTHORIZATION!
It is a tragedy, to say the least, to
find that you waited and waited and waited only to have INS tell you
that they cannot approve your case because you accrued more than 180
days of unlawful presence.
If you file for your work authorization
card 90 days or more b/f your card expires, the INS receipt notice
should correctly note the date of receipt. You should then count 90
days from the time of receipt and if you do not have an appointment
date by the time those 90 days have passed, you can go to the local
INS office with that receipt notice, even though you are going
without an appointment and get processed for your work authorization
card on that day.
There are many other ways we can live with these delays. In the
spirit of cooperation with the Service, and in acknowledgment that
logistical limitations have caused much of these delays (they just
don't have enough people to deal with the volume!), it is important
to be informed of what, if any, you can do to prevent or minimize
the harm caused to you by INS processing backlogs.
Do not, however,
be led to believe that you can only "live with" these problems.
Suits against the INS, which begin with the filing of a writ of
mandamus, are not that atypical. ( In a mandamus action, a federal
district court can compel an officer or employee of the U.S.
government to perform a duty owed to the plaintiff). Many times,
however, the threat of one is enough to get INS moving on your case.
Having said that, if you are experiencing delays that you feel are
not warranted and are causing negative effects on your rights or
those of your family members, contact an immigration attorney to
find out what steps, if any, can and should be taken on your behalf.
NEXT MONTH: TIPS ON HOW TO DEAL WITH THE U.S. EMBASSY IN
MANILA
VANESSA S. BARCELONA is a partner with the law offices
of Barcelona & Pilarski, P.A. She obtained her law degree from the
University of Florida. She is a member of the American Immigration
Lawyers Association, the American Bar Association, and the Florida
Bar. Please send all e-mails to: vsbarcelona@earthlink.net
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