How to handle delays of immigration applications

 

Photo by Andrea Piacquadio

Over the years, our law office has received many inquiries from the public about their pending immigration petitions and applications. The most common questions are about delays or "lack of updates" of their filings.  Yes, it is indeed frustrating not to know what is going on with one's immigration petition for a family member, maybe a fiancé or spouse.  Other filings, such as H-1B petitions and work authorization applications, are also time-sensitive and critical for the applicant to be able to work legally. 

Planning is the Key

As we constantly remind our clients, the U.S. immigration processes are complicated and lengthy. One must have a plan and also some backup plans from the beginning.  It is also important to understand the timeline of each application and plan accordingly.  Although USCIS allows the use of "premium processing services" in some applications for additional fees, most immigration petitions are processed based on a "first come, first served" basis, and also based on visa availability. Early planning is the key to a satisfactory outcome.

Following up and Checking the Processing Times

We sometimes get calls from people who say something like: "I filed this application about 10 years ago, and I want to know what's happened to it."  However, they do not have a filing receipt or the case number.  After submitting any application, make sure that you receive filing receipt notice (I-797) from USCIS.  Keep this notice in a safe place. The receipt number allows you to check your case status and also the normal processing times in USCIS.gov  For immigrant visa cases, visa availability is based on the monthly Visa Bulletin published by the Department of State Visa Bulletin published by the Department of State.  

Reporting changes in address and personal info

Following up also means that you must report any changes in your address and contact information to the government agencies such as USCIS, National Visa Center, etc.  The government agencies would continue to send notices and information to your old address if you fail to report it.  Also changes in marital status and addition of family members must also be reported as soon as possible.

When and How to Ask Questions

If your case is delayed beyond the normal processing times, or if you just have questions about it, you can contact USCIS Customer Service at 1-800-375-5283, (or 1-212-620-3418 from outside the U.S.).  USCIS also have a chatbot called "Ask Emma", that can answer public inquiries. If you believe that the case is unreasonably delayed, you may also submit an Online Case Inquiry through the USCIS website.  For those who are able to use computers, they may also write a letter to USCIS, via certified mail.  One may also call the USCIS Contact Center to schedule an "InfoPass Appointment" to speak to a local immigration officer.  (Please note: local immigration offices may not be able to answer questions regarding an application that is pending with a Service Center. )

Seeking help from the USCIS Ombudsman and Congressional Members

The CIS Ombudsman (1-855-882-8100) serves as a third-party liaison between the public and USCIS. One may seek help from them if USCIS is unresponsive to their inquiries. Similarly, local members of the Congresslocal members of the Congress may also make inquire about a case on your behalf with the USCIS, although responses to Congressional members are usually routine in most cases. 

Seeking Legal Assistance from Professionals

If all these steps seem complicated and confusing, you may seek help from an experienced immigration attorney.  Navigating through the U.S. immigration system can be daunting and time-consuming for many individuals.  It is better to seek help from an experienced professional lawyer who can offer proper advice and guidance.  

Although most case delays can be resolved through normal administrative inquiries, one may have to resort to legal actions in some situations.  For example, a person may file a mandamus action with the federal court to require a government agency to perform their official duties, such as processing and adjudicating immigration applications.  These legal actions are extremely complicated and should be handled by experienced attorneys. 

Conclusion

In sum, given the ever-rising number of immigration filings each year in the U.S., processing delays and other unexpected issues are inevitable. Careful planning and proper followup actions are essential to ensure timely and proper adjudication of one's immigration filings. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Reproduced Original Signatures Temporarily Accepted by USCIS

U.S. Citizenship and Immigration Services today announced that, due to the ongoing COVID-19,  the agency will accept reproduced original signatures in all immigration applications and petitions, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond.  

USCIS already accepts reproduced original signatures in some forms. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature,  Even for forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions still apply.

Applicants who submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature.  USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

Stop - Before Signing That Application!

Have you ever signed any legal documents without reading through them? You may feel like it is too time-consuming to go through the fine print or the terms are too technical to understand. Or maybe it is a take-it-or-leave-it contract that you cannot change its term.  However, generally speaking, once a legal document is signed, its terms are binding on the parties.  One may not use her failure to read before signing as an excuse to escape responsibilities under its terms.

The same strict rule applies in immigration applications. In Matter of Valdez, the Board of Immigration Appeals held that an applicant’s signature on an immigration application creates a strong presumption that the signer knows and consents to the contents of the application. Unless there is fraud, deceit, or other wrongful acts by another person, not having read or understanding the application is no excuse.

Mr. Valdez in the case was petitioned by a Catholic Church for a working visa in 1997, to work as a minister at the church. Three years later, Mr. Valdez and his wife were granted permanent resident status based on his status as a religious worker. However, he was never employed by the church. In 2011, when he applied for admission as a returning resident at the airport, he was stopped for questioning and later admitted that he never worked as a religious worker in the U.S. The couple were later charged with willful misrepresentation of a material fact by the Department of Homeland Security.

In removal proceedings before the Immigration Judge, Mr. Valdez denied the accusation and claimed that neither he nor his wife was aware of the contents of the applications because, as Venezuelans, they did not speak or read English. The only thing he knew was his legal representative's promise that for $15,000 he and his wife could get permanent resident status “through the church”.

The Immigration Judge held that even though the couple did not know English and no one ever translated the applications, they cannot use that as an excuse because it is reasonable to expect the applicants will take steps to understand the documents that they sign, or obtain a translation if necessary. Also, despite the fact that the couple reckoned the legal representative's promise to get them permanent residence was “too good to be true”, they never made any effort to find out how they could do that in any of their meetings with the representative before filing.

The Board also used asylum regulations to support the concept that a person’s signature establishes a strong presumption that the signer understands and assents to the document that he or she signed. Unless there is evidence of fraud, coercion, or other wrongful acts, the Board held that failure to read an applicant is insufficient to get the signer off the hook.

Immigration law is complicated. The applications are sometimes confusing and policies are changing constantly -- it is even difficult for immigration professionals to keep up with all the requirements.  One should not completely rely on agents, consultants, notarios, etc. just because they speak their language.  When in doubt, applicants should consult with an experienced immigration lawyer before filing. If the application was prepared by someone else, it is extremely important for applicants to review the contents carefully and obtain translation, if needed, before signing their names.

Beware of Impostor Immigration Websites!

The Federal Trade Commission (FTC) has filed a complaint against Forms Direct, Inc. and its officer, fining $2.2 million and putting an end to their misleading practices of impersonating USCIS. 

Forms Direct, Inc. charged consumers for immigration form services using websites designed to look like the official USCIS website.  Designs included patriotic schemes of red, white, and blue colors and pictures of the President and U.S. passport. The URLs had deceptive names like uscitizenship.info and usimmigrationcitizenship.com. The FTC claims that these characteristics led consumers to believe they were on official U.S. immigration websites. Many of these websites appeared on search engines such as Google and Yahoo under searches like "USCIS" or "US Immigration". Every characteristic pointed to these websites and services being authentic. No indication was given on these websites that they were unofficial. 

As part of the settlement, the defendants must clearly show on their websites that they are not affiliated with the government. Their consumers must also file the completed immigration applications and pay the filing fee themselves. The $2.2 million fine will go toward refunds. 

Those looking to apply for immigration benefits should be wary of such fraudulent services. Some paid hundreds of dollars and disclosed personal information before realizing the websites were not officially U.S. Immigration. Many of the deceived were those seeking to apply for I-90 green card extension or N-400 naturalization. Consumers should also look out for their family members who may be new to the U.S. immigration system and unfamiliar with the website.

Unfortunately migrants and foreigners are targeted by scammers because they are usually less familiar with the American system and the English language. Similarly, many immigration consultants, notaries, paralegals, etc., would prey on migrants who desperately need help from somebody who speak their languages. These unscrupulous individuals would advice them to file frivolous applications such as requests for asylum.  Because these applications are not truthful, they will inevitably get denied by the U.S. government.  Denial of applications can and will lead to the placement of the applicant in removal proceedings.   At the end, these immigrants could end up with a deportation order.  Even if they subsequently become eligible for a green card, (e.g., through marriage), their applications will be denied because of the prior deportation order. 

Individuals who need legal advice should consult with a licensed attorney who has experience in the subject matter. A general practitioner usually is not trained to handle complex immigration matters.  Similarly, it would not be wise to hire a divorce attorney to file your H-1B petition.  Given the current stringent immigration policy, one cannot afford to make a wrong move. 

Have you Forgotten to Sign your Immigration Form!

Have you ever forgotten to sign an application form? Maybe signing it at the wrong place?  Under some newer and stricter signature requirements announced by U.S. Citizenship and Immigration Services (USCIS), it is more important than ever to sign your immigration application correctly.  If a signature does not meet the new requirements, the application will be rejected and return to the applicant by USCIS. There will not be a second chance to correct the error.  It means that if you file an application a few days before the deadline without a proper signature, you will most likely miss the deadline.  

Scope of the new requirements:  The requirements apply to any request for immigration benefits including any application, petition, or any written request for benefit such as a request for deferred action.   The new requirements do not apply to applications or petitioners submitted via the "e-filing" mechanism of the USCIS.  

New requirements for individual applicants: The new requirements require that all immigration applications and requests must be signed by the person making the request.  A legal guardian or parent can sign for a child under 14 years of age.  A mentally incompetent individual's application may also be signed by her legal guardian.  USCIS will no longer accept signatures by a third party under the authority of a power of attorney (POA).  The only exception is that a person may sign an immigration request for an incapacitated adult under the authority of a durable POA. A petition by a company must be signed by an authorized personnel.  Signatures must be handwritten by ink; signatures created by a computer, typewriter, word processor, stamp, or similar device will not be accepted.  Although USCIS states that an original signature can be photocopied, scanned, faxed, or otherwise reproduced for submission, the applicant must still submit original signatures if it is required by the instruction of an application form.

New requirements for companies and other legal entities: Immigration applications and requests by non-persons must be signed by an individual who is authorized to legally bind the non-person to the terms and conditions of the application.  These may include corporations, limited liability company (LLC), limited liability partnership (LLP), an estate, etc.  The immigration request must contain a statement by the individual signing the request affirming that 1) he or she has the legal authority to file the request on the petitioning employer's behalf; 2) the employer is aware of all the facts stated in the request, and that such factual statements are complete, true, and correct.

What does an applicant's signature mean:  A valid signature signifies that the applicant knows of the content of the request and any supporting documents; has reviewed and approves of any information contained in such request and any supporting documents; and certifies under penalty of perjury that the request an any other supporting documents are true and correct.

The new rules, announced  by a USCIS Policy Memo dated February 15, 2018, are more restrictive than before.  As a general rule, applicants should try to read and confirm everything before signing and submitting any request for immigration benefit with original signatures. 

Change of Gender in Immigration Documents

U.S. Citizenship and Immigration Services issued a policy memo on January 19, 2017 regarding change of gender designation on documents issued by the immigration agency.   To request for a change in the gender on a USCIS-issued document, one may present one of the following forms of evidence: 

• A court order granting change of sex or gender;

•A government-issued document reflecting the requested gender designation. Acceptable government-issued documents include an amended birth certificate, a passport, a driver’s license, or other official document showing identity issued by the U.S. Government, a state or local government in the United States, or a foreign government; or

• A letter from a licensed health care professional certifying that the requested gender

designation is consistent with the individual’s gender identity.   For these purposes, a licensed health care professional includes licensed counselors, nurse practitioners, physicians (Medical Doctors or Doctors of Osteopathy), physician assistants, psychologists, social workers, and therapists. The health care certification letter must include the following information:

1. The health care professional's full name, address, and telephone number;
2. The health care professional’s license number and the issuing state, country,
3. or other jurisdiction of the professional license;
4. Language stating that the health care professional has treated or evaluated the
5. individual in relation to the individual’s gender identity; and
6. The health care professional’s assessment of the individual’s gender identity.

Sudden Release of New Immigration Forms on 12/23/2016

USCIS simultaneously released new editions of many immigration forms on 12/23/2016 with instructions stating that prior editions of the forms will not be accepted.  These new forms caught many users by surprise as there was no advanced notice from USCIS.  However, USCIS has advised AILA that the agency will be flexible in handling these applications and will not automatically reject all outdated forms.  Some of the forms affected include:

I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

Readers should be aware that the new filing fee schedule is also effective as of 12/23/2016.  

(Sources: USCIS.gov, AILA Doc. No. 16122312)

P.S. USCIS subsequently announced that prior versions of the above forms will be accepted until 02/21, 2017 except the Form N-400 (Application for Naturalization). USCIS will accept only the 12/23/16 edition of Form N-400, Application for Naturalization from now on.