Details Leaking Out on July Visa Chart Fiasco Show Extraordinary
and Legally Questionable Steps by U.S.C.I.S. to Exhaust Visa Numbers
to Protect Fee Hike Collections
By Alan Lee, Esq.†‡
More details came to light today as the New York Times
reported that immigration officials said that employees were put
to work both days last weekend at service centers in Texas and Nebraska,
and that 25,000 applications were processed in the final 48 hours
before Monday's deadline. The newspaper also reported that security
clearances required by the FBI in some cases were not entirely completed,
but the agency approved applications when it was certain that the
process would be completed very shortly.
The actions of U.S.C.I.S. are highly reminiscent of its handling
of naturalization applications which were granted during the Clinton
Administration without completed security checks, and caused an
uproar by Republicans that persons with criminal backgrounds were
being approved. In this period after 9/11, such actions by the agency
take on even greater significance as failure to obtain complete
security clearances can endanger the national security of the country.
It should be noted that the U.S.C.I.S. routinely defers adjudication
on approximately 10% of its cases because of lack of FBI clearance,
and has a standard message to inquirers that "Once the file
has been cleared by the FBI, the file will be adjudicated. The Service
has no control over how long it takes the FBI to clear the case."
Some applicants have unsuccessfully pleaded and attempted to go
through all channels beseeching the agency to approve their cases
for over four years when security has not completely cleared. So
it is difficult to understand U.S.C.I.S.'s sudden desire to approve
cases which have not been entirely cleared by the FBI.
The New York Times article also reveals that since 2000,
a total of 182,694 work based visas had not been given out because
U.S.C.I.S. had fallen behind in processing applications. This means
that given the statutory authority to approve 140,000 numbers per
year, the agency in the seven years has averaged 113,901 completed
cases per year, or 9,492 approvals per month. The Department of
State also released figures consistent with these rates of approval
in its July 2, 2007, notice to U.S.C.I.S., "Authorizations
for Employment Cases", comparing CIS requests for visa numbers
during June and the first few days of July with 66,425 requests
during the first eight months of the fiscal year, or a rate of 8,303
requests per month. For the agency to complete enough cases so that
the Department of State could say that sudden backlog reduction
efforts by Citizenship and Immigration Services offices during the
past month had resulted in the use of almost 60,000 employment numbers
constitutes a phenomenon attributable solely to overtime work at
the service centers during the last weekend and the cutting of corners
on security as seen in the New York Times article.
The article also states that U.S.C.I.S. officials said that they
were surprised by the Department of State's action, and that they
immediately advised the Department that they had already finished
approving enough applications to use 60,000 visas of those offered.
It also quoted Michael Aytes, director of domestic policy operations,
as stating that the agency already had more than enough applications
and that it expected to complete them in time to use the visa numbers.
The first assertion if accurately quoted is legally incorrect as
U.S.C.I.S. contacted the Department of State before or as soon as
the visa chart was released, at which time the cases were not approved
as cases by law are not approvable until all steps including security
clearances have been completed. The second assertion by Mr. Aytes
is irrelevant as the number of cases U.S.C.I.S. is holding has no
impact on the visa chart since the Department of State only allocates
visa numbers when U.S.C.I.S. finishes the cases and requests visa
numbers. Thus even if U.S.C.I.S. is holding 2 million employment
based cases, the visa bulletin can still be open if U.S.C.I.S. has
not completed the cases and requested visa numbers.
In addition, even if U.S.C.I.S. had more than enough cases and
expected to approve them in time for use during this fiscal year,
what was the rush in approving so many cases since it had until
September 30th (the end of the government fiscal year) to use up
all the numbers? In other times, the agency would have welcomed
extra revenues from individuals who could file I-485 adjustment
of status cases. The rush to use the numbers by the end of the month
and to rollup the welcome mat can only be attributed to U.S.C.I.S.
anger that all the applicants filing in July would be beating the
U.S.C.I.S. fee hike on July 30th which will raise fees for a typical
family of four from $1,605 to $4,105, an increase of $2,500, or
255%. (See article, "Is Money Behind U.S.C.I.S. Move to Have
Department of State take Unprecedented Action to ' Update ' July
Visa Chart?", http://www.alanleelaw.com/english/articles/a2007-07-01.htm
The author has conjectured that the amount at stake is at least
$250 million. Ibid.
As the fallout continues over what must now be termed a scandal,
one can only hope that reasonable minds can reverse course as further
details only promise to make the episode look uglier and promote
further firestorms of criticism.