Updated Q and A Re USCIS’ New Name Check Policy Now Available

February 28, 2008

USCIS has posted an updated Q & A regarding the new policy allowing for adjudication of certain applications, including those for permanent residence, if name checks have been pending for more than 180 days.

Here are two of the key questions addressed in the updated Q & A about when applicants may expect to receive news about their case.

Q9. How long will it take for USCIS to work through the cases affected by the policy change?

A9. USCIS has begun identifying cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly.

USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid-March 2008. We recommend customers wait until March 10 before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.

Q11. Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if their case is outside of normal processing times and they believe their application meets the criteria of this new policy?

A11. For pending applications outside of normal processing times, we recommend that customers wait until March 10, 2008, before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283. This procedure is for customers who have been previously informed that their case is pending due to the FBI name check. (Cases that are still pending within the processing times will be completed when the related adjudication actions are completed.)


Naturalization Delays? What You Can Do About It

February 28, 2008

While permanent residency applicants were pleasantly surprised by the new USCIS policy allowing adjudication of applications with FBI name checks pending for more than 180 days, naturalization applicants in the same situation were disappointed to learn no such remedy is in sight for them.

So what can you do if your naturalization application is stuck in the FBI name check black hole?

One option is to file a lawsuit against USCIS and the FBI for unreasonably delaying the processing of your case. This lawsuit, known as a mandamus action, enables plaintiffs to request the court to order USCIS and the FBI to do their jobs by adjudicating the case, or in the alternative, conduct a new naturalization hearing before the judge.

Immigrants who have been waiting for years for their application to be processed have been filing such suits in federal courts around the country, generally with success.

AILF (American Immigration Law Foundation) provides an overview of the status of these delayed naturalization lawsuits on its website here.

Additional information on the use of mandamus for other DHS applications, as well as naturalizations is available through AILF here.

These lawsuits for delayed naturalization adjudications are based on INA § 336(b) (8 U.S.C. § 1447(b) ), which requires the government to make a determination on naturalization applications within 120 days of the “examination.”

If the application is not adjudicated 120 days after the “examination is conducted,” under INA § 336(b) an applicant may file a petition in district court seeking judicial adjudication of the application (i.e. the court holds its own naturalization hearing) or return it to USCIS with an order to finish processing it in a timely manner. [Note: With this latter option, you are not asking the court to approve your case. Rather, you are asking the court to compel USCIS to complete processing of your case.]

The hurdle to getting these cases into court centers on the question of whether the FBI name check is considered part of the “examination” so as to provide the court with jurisdiction to hear the mandamus action.

The government argues that the “examination” encompasses the entire process of gathering information about an applicant, including the completion of the FBI check, explains AILF. Thus, the government says, if the FBI check still is pending, the 120-day clock has not started ticking.

The plaintiffs, however, argue the 120-day period runs from the date of the naturalization interview.

Across the country, the courts are agreeing with the plaintiffs that jurisdiction exists even if the name check is not complete. A few holdouts remain, though, so it is important to know the status of the law in your jurisdiction before filing a case.

As to the remedy granted to plaintiffs, most courts have been choosing to remand applications to USCIS for decisions within a specified time frame rather than to conduct naturalization hearings. 

As these mandamus lawsuits have become more and more popular and effective, USCIS is coming up with new policies designed to thwart prospective plaintiffs.

For example, in April 25, 2006, the USCIS announced it will schedule naturalization interviews only after the FBI name check has also cleared, thereby avoiding the triggering of the 120-day clock that has served as the basis for the lawsuits.

In addition, in the early days, when a mandamus lawsuit was filed, USCIS would react by requesting the FBI to expedite the name check for processing. On February 20, 2007, however, USCIS announced that it will no longer make expedite requests based merely on filing a lawsuit.

AILF says the extent to which this new policy affects mandamus actions is still unclear. It says practitioners continue to report that the government is mooting mandamus actions by taking the action requested in the complaint; other practitioners, however, report that the U.S. Attorneys are defending the government more aggressively than in the past.

Attorney Fees

Winning plaintiffs can seek attorney’s fees and costs for pursuing their mandamus actions in federal courts under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and 5 U.S.C. § 504 et seq. The courts, though, will only award attorney’s fees when there has been some sort of court order demonstrating that the plaintiff was the “prevailing party.”

A prevailing party can be established, for example, by a judgment in the plaintiff’s favor, or perhaps a settlement agreement or consent decree approved by the court.

If the government, however, takes the action prior to and in the absence of a court order, attorney’s fees are not recoverable.

For more on EAJA fees, see AILF’s discussion here.

Employers Face Stiffer Fines For Immigration Violations

February 24, 2008

Employers who violate immigration laws will face stiffer fines effective March 27, 2008, announced the U.S. Attorney General’s Office. 

The fines are going up on average 25 percent, which the government says is simply an adjustment for inflation, the last change being in 1999.

Employers may be fined if found to have knowingly employed undocumented works or for other violations, including failing to comply with the requirements relating to employment eligibility verification forms, wrongfully discriminating against job applicants or employees on the basis of nationality or citizenship, and for immigration-related document fraud.

The minimum penalty for knowing employment of an unauthorized alien jumps $100, from $275 to $375. The maximum penalty for a first violation is increasing from $2,200 to $3,200.

The largest hike raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-person basis; thus, if an employer knowingly employed, or continued to employ, five undocumented workers, he would be subject to five fines.

This increases comes on the heels of ramped up immigration enforcement raids and criminal prosecutions against businesses. 

Business owners object to the new fines, saying they combined with the worksite immigration enforcement campaigns will only increase the likelihood of discrimination against foreign nationals, according to the Dallas Morning News.

What “Business” Can You Do on a B Tourist Visa or Visa Waiver?

February 23, 2008

While foreign nationals cannot live and work in the United States on a visitor visa (B-1 or B-2) or under the visa waiver program, certain business activities are allowed. As a general matter, the B-1 business visitor visa or visa waiver permits the following activities:

Visitors traveling to the United States to engage in commercial transactions, negotiations, consultations, conferences, etc.

Business that may be conducted on a regular tourist visa or under the visa waiver program include:

A. Engaging in commercial transactions that do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);

B. Negotiating contracts;

C. Consulting with business associates;

D. Litigating;

E. Participating in scientific, educational, professional or business conventions, conferences, or seminars; or

F. Undertaking independent research.

The following specific business activities are permitted if you are entering the U.S. with a regular visitor visa or under the visa waiver program, according to the Department of State Foreign Affairs Manual and other sources as identified below:

1. Members of Board of Directors of a U.S. Corporation

A visitor who is a member of the board of directors of a U.S. corporation seeking to enter the United States to attend a meeting of the board or to perform other functions resulting from membership on the board.

2. Investor Seeking Investment in the United States

A visitor seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 investor. Such a visitor is precluded from performing productive labor or from actively participating in the management of the business prior to being granted E-2 status.

3. Prospective Intracompany Transferee

A visitor coming to open or be employed in a new branch, subsidiary, or affiliate of the foreign employer, if the visitor will become eligible for status as an L-1 (intracompany transferee) upon securing proof of acquisition of physical premises (See CBP manual);

4. Commercial or Industrial Workers

A visitor coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services. In such cases, however, the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training and must receive no remuneration from a U.S. source.

These provisions do not apply to a visitor seeking to perform building or construction work, whether on-site or in-plant except for an alien who is applying as a B-1 for the purpose of supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work)

5. Business or Other Professional or Vocational Activities

A visitor who is coming to the United States merely and exclusively to observe the conduct of business or other professional or vocational activity may be classified B-1, provided the visitor is paying for his or her own expenses.

Visitors, however, such as students, who seek to gain practical experience through on-the-job training or clerkships must qualify for an H (skilled worker), L (intracompany transferee)  or J (exchange visitor) visa as appropriate.

6. Employees of Foreign Exhibitors

Employees of foreign exhibitors at international fairs or expositions who are not foreign government representatives ordinarily are classified B-1.

7. B-1 in Lieu of H-3 for Trainees

Visitors already employed abroad, who are coming to undertake training and who are classifiable as H-3 trainees may instead enter on a B-1 if the visitor demonstrates that:

A. The proposed training is not available in the visitor’s own country;

B. The visitor will not be placed in a job which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed;

C. The visitor will not engage in productive employment unless such employment is incidental and necessary to the training; and

D.  The training will benefit the visitor in pursuing a career outside the United States;

E. The visitor will continue to receive a salary from the foreign employer and will receive no salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses (including room and board) incidental to the temporary stay.

8. B-1 in Lieu of H-1B

There are cases in which visitors may be performing services in the U.S., such as assisting briefly on a highly technical project, but who do so under a B-1 instead of an H-1B.

As a preliminary matter, consular officers will require that the work to be done in the United States should be at the H-1B level (i.e. a specialty occupation normally requiring a bachelor’s degree) and the visiting employee should have a bachelor’s degree relevant to the services to be provided. (See e.g. U.S. Consulate in Chennai)

The critical criteria, though, for being eligible for the B-1 in lieu of the H-1B is that the visiting employee must not receive any salary or other remuneration from a U.S. source, other than an expense allowance or other reimbursement for expenses incidental to the visitor’s temporary stay. The remuneration or source of income for services performed in the United States must be provided by a foreign source. In other words, by the business entity located abroad.

Where a U.S. business entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source,” according to the Department of State.

Thus, in order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. The visiting employee must be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad.

*Please note the above list is not comprehensive. Other business-related activities may be allowed. Also, the list does not include the additional activities permitted under NAFTA to Canadian and Mexican citizen visitors.

Status Update Available March 30 For Processing Of Employment-Based Green Cards Under New USCIS Policy On Pending FBI Name Checks

February 21, 2008

USCIS has moved up the date to March 30, 2008 for seeking status updates on employment-based green card cases that may be eligible for processing in light of the change in policy regarding pending FBI name checks, according to AILA.

Previously, USCIS had said it would need until April 30, 2008 to sweep its files and identify cases subject to processing in light of the new policy. AILA is reporting now, however, that USCIS service centers say they will accept requests on status updates for employment-based cases effective March 30, 2008.

USCIS has made available to AILA a series of questions and answers regarding this new policy and its implementation that we have posted here.

For more background information see our other articles CIS Sweeping Files For Green Card Cases Eligible For Processing Under New Policy and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks.

USCIS To Take 3 Years to Clear Naturalization Backlog; Processing Time Up To 18 Months Now

February 16, 2008

USCIS is estimating it will take three years to clear the backlog of naturalization applications submitted just before the fee increase in July 2007, according to the Migration Policy Institute.

Following the summer surge, applications went from taking 6-7 months on average to process to 16-18 months.

USCIS attributes the surge in applications to both the fee increase and nationwide naturalization campaigns in the run-up to the presidential election. USCIS reports that between May-July 2007 it received 737,223 applications, 3.5 times more than  the usual number of 207,536 received during the same period the previous year, according to the Migration Policy Institute.

USCIS says it has beefed up manpower to deal with the volume, but anticipates it will be 2010 before processing times will drop back to those pre-surge.

While discussing its efforts to address the surge, USCIS makes no mention of how it plans to combat the multi-year delay of thousands of naturalization applications due to pending FBI name checks.

Immigration attorneys nationwide have been forced to address these delays by filing a mandamus lawsuit in federal court against DHS/USCIS and the FBI to compel the government to finish processing the applications. For more information about mandamus lawsuits, please visit AILF (the American Immigration Law Foundation), which is tracking mandamus actions against the government for delays of both naturalization and adjustment of status (I-485) applications.

CIS Sweeping Files For Green Card Cases Eligible For Processing Under New Policy

February 14, 2008

In response to the new policy allowing for processing of green card cases and other applications with FBI name checks pending for more than 180 days, USCIS is sweeping its files looking for eligible cases, according to AILA.

AILA’s service center operations liaison confirmed USCIS is proactively searching for those adjustment of status cases that can be processed now under the new policy. USCIS told AILA its target date for identifying and acting on eligible cases is April 30, 2008.

AILA national and local offices will continue to monitor USCIS’s actions in light of the new policy. Our site will provide updates as the situation develops.

For more information, see our other articles: How You Can Use the New CIS Name Check Policy to Jump Start Your Stalled Case and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks