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PROBLEMS AND ISSUES WITH USCIS

REQUESTS FOR ADDITIONAL EVIDENCE

Even if you have filed a very straightforward good faith application and did not expect any problems with it you might receive a blue paper telling you to provide USCIS with more information.

The request can be for pretty much any paperwork; including documents that you have provided already, documents that do not exist or documents that are impossible to obtain. Those requests are in part machine-generated so treat them as such.

If you have received correspondence that you donít know how to approach, feel free to contact me even if I did not run your case from the beginning. If USCIS is requesting something impossible I might be able to help you find a suitable replacement, providing the information they need.

DENIALS

Sometimes a petition is rejected or denied. Unless a denial is accompanied with a details explanation as to the reasons it can be fixed. If the reasons are provided chances are it can be appealed. If such denial has to do with an extension of stay application and you decide to appeal the decision, you can still stay in the United States legally while your appeal is pending.

If you choose to come see me in regard of a denial make sure you bring me all the paperwork, even remotely related to you matter because we will indeed need it all.

MISSING DOCUMENTS

If often happens, unfortunately, that an applicant files the papers in compliance with the instructions on the USCIS website, be it extension of status, adjustment or any sort of filing that requires USCIS to act, and nothing happens. The applicant understands that some kind of a bureaucratic delay occurred, gathers all his patience and waits Ė until he gets tired of it.

In cases like that but there is normally a way to find out, what exactly happened with a particular file and to push it though the system.

Same is true about documents that go missing; were once filed but the applicant never received a decision and others of the sort.

It is impossible to provide a general advice for cases like that except: come for an appointment and we will try to find a way for your particular case. It worked so far.

NAMECHECK DELAYS

Interview for US citizenship or green card is generally thought of being a final step. Sometimes (nowadays less frequently though) though the applicant who has just successfully passed the citizenship interview with the USCIS is handed a notice with "unable to make a decision" box checked with the red pen. The hearing examiner's reasoning at the bottom would say: "security name check not cleared" - or not say anything. The applicant understands that some kind of a bureaucratic delay occurred, gathers all his patience and waits.

Within a year or two the patience grows thinner. The applicant calls the number on the notice or goes to a local USCIS office for an infopass appointment to find out that his name check is still pending. The applicant naturally inquires if s/he can bring any documents or furnish any information to help assure the FBI that he is a law-abiding person. The response is: "No, thank you, they have it all and there is no way USCIS can influence the way FBI works with their files. We cannot do anything from here. We shall send you to the invitation to the oath immediately when the name check clears. But as for today it is pending."

How long is the possible delay?

According to the USCIS Ombudsman, as of May 2007, 329,160 FBI name check cases are pending, and 106,738 of them are pending for more than one year.

The worst case I had in my practice included a four-year waiting period following the person's successfully passing his citizenship interview.

Meanwhile the applicant is deprived of all the benefits of the citizen's or legal permanent resident's status.

What is this name check all about?

There are three sets of records USCIC uses in course of investigating the petition.

The Interagency Border Inspection System (IBIS) combines information from multiple agencies, databases and system interfaces to compile data relating to national security risks, public safety issues and other law enforcement concerns. This takes some time.

The fingerprints check, also known as biometrics, is performed by the FBI's Criminal Justice Information Services and requires the applicant to submit his fingerprints at a local office. These results come rather quickly and generally cause little delay.

The FBI Name check is a procedure in course of which an FBI officer is comparing a person's name against the Central Records System: "administrative, criminal, personnel and other files compiled by law enforcement." The officer is checking not only the name itself, but also various ways it could be spelled. If there is a match an agent must manually review the file or entry; not all of the archives he is comparing the name against are computerized. In other words, they are working really slowly.

The FBI proudly announced that the backlog has been liquidated however it is still not uncommon for a case to get stuck somewhere in process.

Does a name check delay mean that something is wrong with the would-be citizen?

By no means, since everyone is subject to the same procedure. If anything, it means that the person's name is not rare enough to be unique and not pop up in the system however strangely spelled.

Isn't there are law that says it should not be so?

But of course: under Immigration and Naturalization Act ("INA") ß 336(b) and 8 U.S.C. ß1447(b) USCIS must determine whether they want to grant an applicant citizenship within 4 months after the interview.

So what is the way out?

Many people try to write letters to their Congressmen or even the First Lady. Those attempts may or may not be successful. The reason is, Congressional inquires are coming back with the same response: "case pending".

A lawsuit in federal court against the USCIS and the FBI is a way to nudge the system that works no matter what.

Suing the state sounds much scarier than in is in real life because many of those suits get dismissed very early. A complaint is filed in the federal court of the applicant's domicile. A copy of the complaint is served on the FBI, USCIS and other defendants. After receiving the complaint FBI officers can just pull out the case, perform the name check and release it in order to spare the US Trial Attorney's efforts to respond to the complaint, and make the case moot. Since name check clearance is exactly what the applicant is looking for, everybody is happy with the result. I charge $2,500 plus $450 in court costs to get you through this whole process from the beginning to the end.

REMOVAL LITIGATION AND RELATED ISSUES

Not everyone who stays in the United States illegally is in removal. Unfortunately though, getting into removal for a person whose legal status in the United States has expired it is a matter of when, rather than if. Even though it might be a terrible experience for the person who is removed, a removal is not considered punishment under the law; the alien has no constitutional rights that people normally think of: no right for a state-appointed and state-financed attorney, not presumption of innocence; there is a n immigration judge rather than a jury who decides on the facts of the case and the Trial Attorney (immigration prosecutor) does not have to prove his case beyond a reasonable doubt.

Under the existing federal laws, someone who has overstayed his status for 6 months to a year shall be removed and banned from entrance into the United States for the next three years. Someone who has overstayed more than a year hall be removed and banned from entrance into the United States for the next ten years no matter what.

Sometimes a green card holder can end up in removal proceedings if his green card is in process of being revoked.

There are ways to waive or cancel the removal by showing what is called a clear path to legalization, and the only hope for the alien is to resort to these means (see Cancellation of Removal below.)

If you are in removal, you will know, because you are not in removal until you receive a Notice to Appear.

NOTICE TO APPEAR

A Notice to Appear (immigration attorneys call it NTA) is a three to ten page document served on the person by some immigration official (at the border upon entrance or upon arrest.) After receiving it the person who gets it is officially in removal: the Trial Attorney indicates that his intention is to prove in the immigration court that the alien has no legal reason to stay in the United States and thus should be sent to his own country. Normally the NTA states the facts that government thinks it can prove, and gives some idea as to what the Trial Attorney has in mind.

The NTA normally does not indicate when and where the court hearing will be held: it is followed by summons that would arrive at the alienís place of abode.

If you are summonsed to the immigration court cancel all other appointments and make sure you show up; come early and check with the clerk in which room you are. If someone is not present at the hearing the immigration judge will order him removed in absentia and close the case: once such person is found by the immigration officials he will be taken into jail and then out of the country with no possibility of relief. If there was some drastic set of circumstances that prevented the alienís appearance an attorney can go through a set of motions and have the case reopen; however this is allowed only once throughout the history of the case.

BOND HEARING

Sometimes, if the immigration enforcement officials believe the alien to be a flight risk they might arrest him and keep him in jail before removal, while his matter is pending. If someone is in criminal prosecution the immigration officials can issue a habeas corpus request, asking for this person to be transferred from the criminal to the immigration jail for the purposes of removal.

In order to get the alien out his attorney would file a motion requesting a bond hearing to be scheduled and asking the immigration judge to release the alien on bond until the next court date. Judge may or may not agree to do this; if he does, a certain amount should be deposited with the court in order to have the alien released: it will be returned to him at the end of the proceedings unless he fails to appear.

MASTER CALENDAR HEARING

In course of the first hearing (whether the alien is summonsed thereto or brought from the jail) the immigration judge would go through certain steps: he would make sure the alien has received the Notice to Appear and if the alien is not represented by an attorney he would inquire he needs some time to go find an attorney. Normally, the judge would access the case before starting the hearing and if the alien is not represented but has a possibility of relief the judge might advise him to go find an attorney. The case is then scheduled for the next hearing and that is the end of the first day.

Next hearing involves filling out pleadings by both parties in which the Trial Attorney makes the allegations and the attorney for the alien agrees with some of them (like the spelling of the name date of birth or such) and denies some of them (like grounds for removability). In course of that hearing the attorney for the alien tells the judge why it is that the alien should not be sent out of the country despite being removable. The judge inquires into what shall be the evidence and schedules the case for individual hearing.

There can be more than one Master Calendar hearing in cases where the alien is awaiting some action by the immigration officials; or gathering materials and needs more time.

INDIVIDUAL HEARING

Once all the evidence in the case are filed the alien and his attorney attend a hearing where they prove why the alien should not be removed. Normally the evidence consists of testimony and documents. After hearing the evidence, the judge decides whether the alien should be removed or not, and whether he can be granted voluntary departure: a disposition where the alien purchases a ticket to his own country and removes himself and in return the ban that applies to his case is lifted.

REASONS FOR CANCELLATION OR WAIVER OF REMOVAL

Most of the arguments that have to do with alienís reasons to stay in the country go along the lines of him having a citizen spouse with small kids or grown-up citizen kids or having secured employment that makes him eligible for a visa. All potential reasons for cancellation of removal should be discussed in every case thoroughly because sometimes a non-traditional approach can do it.