The Anatomy of a Mirage, Part III: “The Autopsy”
By Mark G. Murov
So, what do we know about the July Visa Bulletins fiasco, now that the dust has finally settled? I’ll try to keep it simple, recapping the events without full background analysis.
First: in many recent years, USCIS has allowed immigrant visa “numbers” (slots) to “die on the vine” by failing to do its job of concluding enough employment-based green card Applications for Adjustment of Status (Forms I-485) during the current Fiscal Year. This failure has been a contributing factor in the creation of an ongoing backlog of applicants, prejudicing the legal rights of substantively qualified immigrants to timely obtain their LPR status.
Second: in May and June, 2007, the U.S. Department of State (DOS) followed its own historical procedures (and sound practices generally) by advancing the visa cutoff dates to reflect the under-consumption of Fiscal Year 2007 visa numbers by USCIS. There was nothing unprecedented or improper in this forward spike; it was a legitimate and admirable attempt to force USCIS to pick up the pace of its I-485 adjudications, so that numbers would not die on the vine again this year. The result was that the EB-1, EB-2 and EB-3 cutoff dates were scheduled to go “current” for July. We know what happened next: USCIS somehow claimed to have “approved” enough cases in a two-week period to use all the remaining Fiscal Year 2007 numbers, and so advised DOS.
Third: DOS next issued a “Revised” Visa Bulletin for July, 2007, showing that no visa numbers were available for any EB categories. USCIS was, for the moment, off the hook, and could then refuse to accept the massive number of filings which had already occurred or which would occur during July. The Revised Bulletin also would have earned the USCIS vast revenues due to the filing fee hike scheduled for July 30.
Fourth: Due to public outcry, threats of litigation and obvious questions about how USCIS could possibly have consumed all those numbers between June 14 and July 1 (including its admission that some numbers were requested on July 1 and July 2), the government announced a settlement on July 17 whereby DOS would issue a third visa Bulletin, and filers would have until August 17 to file based on the original July Visa Bulletin, and at the old filing fees.
Fifth (Cracking the Code, unequivocally): In mid-August, the September Visa Bulletin was released, showing fixed cutoff dates in some EB categories. How could all of the numbers have been consumed on July 2, followed in Mid-August by the establishment of cutoff dates rather than showing 100% “unavailable” designations for September? Obviously, the numbers were not consumed, or at least not properly and actually consumed, as opposed to having allegedly been “requested” by USCIS in late June and early July.
Accountability? We’ll see.
The workings of the preference system and the allocation of visa numbers can be complicated, sometimes inscrutable. But what happened in late June is not complicated; it is in fact quite transparent, and an embarrassment.
Who should be accountable for this fiasco? The worst I can say about the DOS is that it was too quick to accept the USCIS's assertion in releasing the Revised Bulletin on July 2. But who at USCIS engaged in misconduct? And what’s happening now? Is “oops, I guess we got caught” the last word on this event? Don’t the DHS and the Department of Justice have a duty to investigate? I, for one, would like to know if the persons who attempted this fraud are still in place and running the agency.
Monday, August 27, 2007
Monday, July 16, 2007
The Mirage - Part 2
This supplements and analyzes the recent entry, "The Anatomy of a Mirage"
Reliable sources now indicate that in the weeks following the mid-June announcement of the July visa availability, the USCIS requested tens of thousands of immigrant visa numbers. It is undisputed that requests for some of these numbers were made on July 1 and 2 (during the month of July), so that numbers could then be (ahem!) “unavailable” for the month of July, thus enabling the USCIS to refuse to accept new applications “during” July. (Don’t claim you can’t understand this.) Instead of an orderly use of the visa slots as dictated by the Immigration and Nationality Act, what we have witnessed is a chaotic misuse of the procedures, for the convenience of the USCIS and to the detriment of the companies and people USCIS calls its “customers.”
How does an agency become so arrogant as to believe that the law exists only for its own convenience? One theory would be that there is a Bush (Cheney) "administration culture," a darker version of "corporate" cultures in our law firms and at our clients' companies. It is not coincidental that this Visa Bulletin-Gate would occur for the only time in 30 years under an administration where the VP can cynically claim to be part of the legislative branch to dodge the legal requirements that apply to the executive. It is easy to image how this shell game was plotted by senior USCIS officials: "We can just request all the numbers, and then try to catch up by using them later. Who is going to stop us? This system is so complicated that only an EB-2 Computer Scientist from India can understand it, and no one will be able to explain how this move is illegal. Now we won’t have all that extra work next month.”
Welcome to America (sometime in the future).
Reliable sources now indicate that in the weeks following the mid-June announcement of the July visa availability, the USCIS requested tens of thousands of immigrant visa numbers. It is undisputed that requests for some of these numbers were made on July 1 and 2 (during the month of July), so that numbers could then be (ahem!) “unavailable” for the month of July, thus enabling the USCIS to refuse to accept new applications “during” July. (Don’t claim you can’t understand this.) Instead of an orderly use of the visa slots as dictated by the Immigration and Nationality Act, what we have witnessed is a chaotic misuse of the procedures, for the convenience of the USCIS and to the detriment of the companies and people USCIS calls its “customers.”
How does an agency become so arrogant as to believe that the law exists only for its own convenience? One theory would be that there is a Bush (Cheney) "administration culture," a darker version of "corporate" cultures in our law firms and at our clients' companies. It is not coincidental that this Visa Bulletin-Gate would occur for the only time in 30 years under an administration where the VP can cynically claim to be part of the legislative branch to dodge the legal requirements that apply to the executive. It is easy to image how this shell game was plotted by senior USCIS officials: "We can just request all the numbers, and then try to catch up by using them later. Who is going to stop us? This system is so complicated that only an EB-2 Computer Scientist from India can understand it, and no one will be able to explain how this move is illegal. Now we won’t have all that extra work next month.”
Welcome to America (sometime in the future).
Sunday, July 8, 2007
The Anatomy of a Mirage
By Mark G. Murov
On July 2, 2007, the U.S. Department of State (DOS) issued an unprecedented “Revised Visa Bulletin” which informed us that the United States Citizenship and Immigration Services (USCIS) had by some means consumed so many immigrant visa slots in the preceding two weeks that there were no slots left for the remainder of the 2007 Fiscal Year, and that there would be no more filings of Applications for Adjustment of Status (Form I-485) until October 1, 2007.
Here are the links to the original July Visa Bulletin http://travel.state.gov/visa/frvi/bulletin/bulletin_3258.html, and the revised version
http://travel.state.gov/visa/frvi/bulletin/bulletin_3263.html
As previously explained in mid-June, the forward movement which created the “current” status for all employment-based immigrant visa categories for July was, in the first place, something of a “false positive.” The excessive demand for the limited number of slots was still there, and there were people in line for the final allocation of numbers. What was reported in mid-June was that the door would open for the month of July, and perhaps longer, and that a large number of persons could file and as a result become vested with the right to apply for and receive an Employment Authorization Documents (EAD) and Advance Parole (AP) travel documents, and to renew them as needed until the Lawful Permanent Residence (LPR or green card) is eventually granted. In addition, the opportunity to file the Application for Adjustment of Status by the principal alien would in due course create “portability” or the right to change jobs and retain his or her vested approvals (of the Application for Alien Labor Certification and immigrant visa petition).
The mechanics of the availability of these immigrant visa “numbers” (slots) are complex. However, what happened in the past two weeks is as follows: USCIS had not consumed as many slots (i.e., approved as many pending cases) as projected during the first three quarters of 2007 Fiscal Year. The DOS computer then directed the DOS to issue a report for July that slots were available to all who had reached the point of being able to file Applications for Adjustment of Status but for lack of a slot. The USCIS, realizing that it would be inundated with tens or hundreds of thousands of applications during the month of July, made an unprecedented push and approved a (reported) 60,000 pending applications in two weeks, thus consuming all of the remaining 2007 Fiscal Year slots for all categories, regardless of the “priority dates.”
Then, at USCIS’s request, the DOS issued a “Revised” Visa Bulletin (the only one I have seen in my 30 years in this field), thus enabling the USCIS to reject the Applications for Adjustment of Status which immigration lawyers had rushed to prepare and file.
Although everyone is annoyed and frustrated, this action by the agencies appears to be in keeping with the mechanics of the Immigration and Nationality Act, and in my view will not likely be overturned by a lawsuit. There are several aspects of these developments which are nonetheless very offensive:
First, the USCIS talks about “customer service” and we have never, ever, seen USCIS work so hard to approve cases to serve us as the customers. The push in this instance was self-serving, to avoid having more cases filed, and to delay filings until after the filing fees rise yet again on July 31 as scheduled. Additionally, without this push, those with reasonably good priority dates could have filed their Applications for Adjustment of Status during the 4th quarter months (July, August and September, 2007), and they will now have to wait until October. In addition, others whose cases are pending might have been actually approved during the 4th quarter and they will have to wait until at least October also.
Also annoying is the historical fact that one of the reasons for the existence of the huge backlog was that the agencies involved in these types of cases [the U.S. Department of Labor (DOL) and the USCIS] had not cared about backlogs or customer service in 2001 through 2005, and thus permitted immigrant visa slots to die on the vine in those years. If those slots had been utilized when available, none of this would have occurred.
So, intended or not, events have resulted in a mirage appearing on June 14 and then, confusingly, disappearing on July 2, 2007 to the disappointment of all concerned. The only slight benefit was to those whose pending I-485 cases were finally approved a bit earlier than otherwise, but they had Employment Authorization Document (EAD) and Advance Parole (AP) travel documents and an early approval to them was of much less value than the filing opportunity would have been for those whose hopes were raised and then found themselves holding an empty bag.
By Mark G. Murov
On July 2, 2007, the U.S. Department of State (DOS) issued an unprecedented “Revised Visa Bulletin” which informed us that the United States Citizenship and Immigration Services (USCIS) had by some means consumed so many immigrant visa slots in the preceding two weeks that there were no slots left for the remainder of the 2007 Fiscal Year, and that there would be no more filings of Applications for Adjustment of Status (Form I-485) until October 1, 2007.
Here are the links to the original July Visa Bulletin http://travel.state.gov/visa/frvi/bulletin/bulletin_3258.html, and the revised version
http://travel.state.gov/visa/frvi/bulletin/bulletin_3263.html
As previously explained in mid-June, the forward movement which created the “current” status for all employment-based immigrant visa categories for July was, in the first place, something of a “false positive.” The excessive demand for the limited number of slots was still there, and there were people in line for the final allocation of numbers. What was reported in mid-June was that the door would open for the month of July, and perhaps longer, and that a large number of persons could file and as a result become vested with the right to apply for and receive an Employment Authorization Documents (EAD) and Advance Parole (AP) travel documents, and to renew them as needed until the Lawful Permanent Residence (LPR or green card) is eventually granted. In addition, the opportunity to file the Application for Adjustment of Status by the principal alien would in due course create “portability” or the right to change jobs and retain his or her vested approvals (of the Application for Alien Labor Certification and immigrant visa petition).
The mechanics of the availability of these immigrant visa “numbers” (slots) are complex. However, what happened in the past two weeks is as follows: USCIS had not consumed as many slots (i.e., approved as many pending cases) as projected during the first three quarters of 2007 Fiscal Year. The DOS computer then directed the DOS to issue a report for July that slots were available to all who had reached the point of being able to file Applications for Adjustment of Status but for lack of a slot. The USCIS, realizing that it would be inundated with tens or hundreds of thousands of applications during the month of July, made an unprecedented push and approved a (reported) 60,000 pending applications in two weeks, thus consuming all of the remaining 2007 Fiscal Year slots for all categories, regardless of the “priority dates.”
Then, at USCIS’s request, the DOS issued a “Revised” Visa Bulletin (the only one I have seen in my 30 years in this field), thus enabling the USCIS to reject the Applications for Adjustment of Status which immigration lawyers had rushed to prepare and file.
Although everyone is annoyed and frustrated, this action by the agencies appears to be in keeping with the mechanics of the Immigration and Nationality Act, and in my view will not likely be overturned by a lawsuit. There are several aspects of these developments which are nonetheless very offensive:
First, the USCIS talks about “customer service” and we have never, ever, seen USCIS work so hard to approve cases to serve us as the customers. The push in this instance was self-serving, to avoid having more cases filed, and to delay filings until after the filing fees rise yet again on July 31 as scheduled. Additionally, without this push, those with reasonably good priority dates could have filed their Applications for Adjustment of Status during the 4th quarter months (July, August and September, 2007), and they will now have to wait until October. In addition, others whose cases are pending might have been actually approved during the 4th quarter and they will have to wait until at least October also.
Also annoying is the historical fact that one of the reasons for the existence of the huge backlog was that the agencies involved in these types of cases [the U.S. Department of Labor (DOL) and the USCIS] had not cared about backlogs or customer service in 2001 through 2005, and thus permitted immigrant visa slots to die on the vine in those years. If those slots had been utilized when available, none of this would have occurred.
So, intended or not, events have resulted in a mirage appearing on June 14 and then, confusingly, disappearing on July 2, 2007 to the disappointment of all concerned. The only slight benefit was to those whose pending I-485 cases were finally approved a bit earlier than otherwise, but they had Employment Authorization Document (EAD) and Advance Parole (AP) travel documents and an early approval to them was of much less value than the filing opportunity would have been for those whose hopes were raised and then found themselves holding an empty bag.
Sunday, January 21, 2007
Dealing with a USCIS Request for Evidence (RFE) - Part 1
Ideally, your case is strong on the merits and well presented, and filing it results in a quick Notice of Approval at the initial review by the USCIS. But all cases are not strong, and good immigration lawyers can and do file marginal or “dicey” petitions, often for good reasons (that is the subject of a future blog entry). Let’s jump past that discussion for now and consider the sometimes dreaded, never happy “RFE.”
Types of RFEs
There are at least 5 types of RFEs. Today’s blog entry will discuss one of them. (The 5 types are 1. The bogus RFE to interrupt a Premium Processing Service deadline; 2. The nuanced or totally inscrutable RFE: “Playing Parlor Games”; 3. The “killer” RFE: the translation is “your case will be denied no matter what you submit” and 4. the documentary RFE: you forgot (or USCIS overlooked) a document, and it can be readily submitted or resubmitted with comfort that the Notice of Approval will be forthcoming as soon as the officer sees it. 5. The benign RFE: You overlooked an element of the case the officer has made a perfectly reasonable request for a legitimate reason, and the exact description of what is needed is explicit and (thankfully!) your client has the proof readily available.)
The client has hundreds of employees, including scores of engineers. The H-1B petition is for a for a Transformer Design Engineer earning $69,000 per year. All of the documentation was submitted and well organized to establish every element of the case, including a detailed statement of the profesional nature of the duties of the position. The USCIS issues the following RFE:
“The evidence submitted fails to establish that the position offered meets the definition of a Specialty Occupation. Please submit proof that the position requires a Bachelor’s degree.”
"Really?" You say. In immigration practice at the USCIS Service Centers, yes, really.
The motivation for this mishugas is utterly transparent:, merely cutting and pasting some “boiler plate” text into an RFE, and creating a fax cover, can be accomplished in 45 seconds, and adjudicating the case to completion would take 45 minutes. Perhaps the USCIS officer’s daughter’s soccer game was starting in 30 minutes. Whatever the reason, your case is on hold until you respond. And it has to be the correct response.
An experienced immigration lawyer can address this RFE in a way which forces the USCIS to approve the petition, and counsel should not be worried about winning the case. But counsel must be careful: The response to the RFE is the one and only opportunity to create a record of fact and law. Obviously, the Officer is either untrained, lazy, or just hostile to the case for some unknown reason.
The only safe response will be a structured and referenced reply, overloaded with evidence and advocacy, and replete with citations to U.S. Government resources, university web sites and other independent statements of the obvious: that a Transformer Design Engineer position requires a person with a Bachelor's in Electrical Engineering, due to the nature of the duties. A "dumb" RFE is like a poisonous reptile, just a much as the RFE which obviously foreshadows an intent to issue a final denial.
Types of RFEs
There are at least 5 types of RFEs. Today’s blog entry will discuss one of them. (The 5 types are 1. The bogus RFE to interrupt a Premium Processing Service deadline; 2. The nuanced or totally inscrutable RFE: “Playing Parlor Games”; 3. The “killer” RFE: the translation is “your case will be denied no matter what you submit” and 4. the documentary RFE: you forgot (or USCIS overlooked) a document, and it can be readily submitted or resubmitted with comfort that the Notice of Approval will be forthcoming as soon as the officer sees it. 5. The benign RFE: You overlooked an element of the case the officer has made a perfectly reasonable request for a legitimate reason, and the exact description of what is needed is explicit and (thankfully!) your client has the proof readily available.)
The client has hundreds of employees, including scores of engineers. The H-1B petition is for a for a Transformer Design Engineer earning $69,000 per year. All of the documentation was submitted and well organized to establish every element of the case, including a detailed statement of the profesional nature of the duties of the position. The USCIS issues the following RFE:
“The evidence submitted fails to establish that the position offered meets the definition of a Specialty Occupation. Please submit proof that the position requires a Bachelor’s degree.”
"Really?" You say. In immigration practice at the USCIS Service Centers, yes, really.
The motivation for this mishugas is utterly transparent:, merely cutting and pasting some “boiler plate” text into an RFE, and creating a fax cover, can be accomplished in 45 seconds, and adjudicating the case to completion would take 45 minutes. Perhaps the USCIS officer’s daughter’s soccer game was starting in 30 minutes. Whatever the reason, your case is on hold until you respond. And it has to be the correct response.
An experienced immigration lawyer can address this RFE in a way which forces the USCIS to approve the petition, and counsel should not be worried about winning the case. But counsel must be careful: The response to the RFE is the one and only opportunity to create a record of fact and law. Obviously, the Officer is either untrained, lazy, or just hostile to the case for some unknown reason.
The only safe response will be a structured and referenced reply, overloaded with evidence and advocacy, and replete with citations to U.S. Government resources, university web sites and other independent statements of the obvious: that a Transformer Design Engineer position requires a person with a Bachelor's in Electrical Engineering, due to the nature of the duties. A "dumb" RFE is like a poisonous reptile, just a much as the RFE which obviously foreshadows an intent to issue a final denial.
Subscribe to:
Posts (Atom)