Pilot Program To Expedite Entry Into U.S. For Citizen, LPR Travelers

U.S. citizens, nationals, and permanent residents will soon be eligible for a pilot program enabling expedited clearance of pre-approved, low-risk air travelers into the United States, according to a new rule published in the Federal Register.

The International Registered Traveler (IRT) pilot project, a.k.a. Global Entry, is scheduled to start June 10, 2008 at  John F. Kennedy International Airport, Jamaica, New York (JFK); the George Bush Intercontinental Airport, Houston, Texas (IAH); and the Washington Dulles International Airport, Sterling, Virginia (IAD), and may expand to other locations as announced.

CBP is working with other countries, exploring expansion of the program to include other categories of travelers as well.

Applications to participate in the pilot program should be submitted May 12, 2008, but will be accepted throughout the duration of the pilot program. The pilot program is expected to continue for at least six months. The time frame of the pilot program will vary, depending on the progress of CBP’s evaluation of the program.

The program enables participates to by-pass regular passport control primary inspection lines, using instead automated kiosks to verify identity via fingerprint biometrics technology, explains the Rule.

The procedure will also involve responding to several customs declaration questions by use of a touch-screen.

Upon verification, the traveler will receive a receipt, which, along with his passport and/or permanent resident card, he then gives to the CBP Officer at the exit control area for examination.

The application for the IRT pilot is available on-line through the Global On-Line Enrollment System (GOES).

There is a $100 non-refundable application fee.

CBP has posted a FAQ on its site.

How to Report Suspected Criminal Violations by USCIS Employees

Immigration officers are required to abide by standards of integrity and efficiency, and if they do not, the U.S. government wants to know about it.

You may report suspected criminal violations, misconduct, wasteful activities, and allegations of civil rights or civil liberties abuse to the DHS Office of Inspector General.

To make a report, call 1-800-323-8603 or email DHSOIGHOTLINE@DHS.GOV.

Calls can be made anonymously and confidentially.

For more information, see the Office of Inspector General web page.

USCIS, FBI Announce Plan to Eliminate Name Check Backlog

USCIS and the FBI have announced a joint plan to eliminate the name check nightmare that holds up processing of applications, such as for green cards and naturalization.

The agencies say they will obtain their new processing goals “by increasing staff, expanding resources, and applying new business processes,” according to a USCIS press release.

The agencies have set the following milestones for name check processing:

May 2008 – Process all name checks pending more than three years

July 2008 – Process all name checks pending more than two years

Nov. 2008 – Process all name checks pending more than one year

Feb. 2009 – Process all name checks pending more than 180 days

June 2009 – Process 98 percent of all name checks within 30 days and process the remaining two percent within 90 days.

New International Adoption Procedures Take Effect April 1

New international adoption procedures take effect April 1, 2008 when the recently ratified Hague Convention for Intercountry Adoption (HCIA) goes into force in the United States and other member countries.

The Convention is designed to better protect the best interests of the children who are adopted, their birth families, and the adoptive parents. By imposing adoption practice standards, its goals are to prevent the abduction, exploitation, sale, and trafficking of children.

As of February 26, 2008, 75 countries have become parties to the Hague Adoption Convention.

Adoptions between Hague and non-Hague countries are not prohibited by the HCIA.

The major changes to the way inter-country adoptions are processed under the HCIA are:

• Designation of a central authority for the regulation of inter-country adoption
• Requirements for agency adoption accreditation;
• Transparency of agency budgets and fee schedule policy; including accounting audits; and
• Professional standards of practice including supervision guidelines, and the training of agency employees, board members, and prospective adopting parents in HCIA requirements.

In the United States, the Department of State (DOS) is designated as the “Central Authority” under the HCIA and the Intercountry Adoption Act (IAA), which implements the HCIA in the United States. DOS is responsible for ensuring HCIA and IAA requirements are followed.

U.S. adoption service providers must be accredited to handle HCIA adoption cases. DOS provides a list of approved agencies in the United States.

DOS will maintain a centralized registry to track all adoption cases and to receive complaints and comments about accredited adoption service providers involved in HCIA cases.

DOS has also beefed up its information about adoption practices in various countries, including posting warnings as information is received.

USCIS has issued interim regulations governing the adoption process in light of the HCIA and IAA. The interim regulations are in effect, and are being published for public comment for issuance of the final rule. The comment period has been extended to May 27, 2008.

USCIS has established a special unit to process all HCIA adoption applications and petitions at its USCIS National Benefits Center. The special unit will also provide customer service support to prospective adoptive parents who have filed Form I-800A or Form I-800 for inter-country adoptions.

Prospective adoptive parents can download the forms and filing instructions and Hague Adoption Convention Fact Sheet, available on the the USCIS site.

Americans adopted more than 19,000 foreign-born children in 2007 – more than all the other countries of the world combined, according to CNN.

Naturalization Interviews To Be Held Weekends, After Hours

If you receive your notice for a naturalization interview and it is schedule for the weekend or after hours, it was not a mistake. 

USCIS said it is expanding its hours and staff to help respond to the deluge of naturalization applications received last year.

In pursuit of its processing time goals, USCIS will be interviewing applicants on Saturdays, Sundays and during the week after traditional work hours.

Estimated Processing Times For Summer Surge Naturalization Applications Reduced to 14-16 Months

USCIS has reduced its processing time projections to 14-16 months for naturalization applications filed during the surge last summer, increasing the chance yours will be approved in time to vote in the November presidential election, according to a recent statement.

Processing times were originally estimated to be between 16-18 months.

USCIS reports that during FY 2007, it received approximately 1.4 million naturalization applications. In the months of June and July of 2007 alone, it experienced an increase of nearly 350 percent compared to the same period in 2006.

The summer surge is attributed to a desire to beat the fee increase and to stepped up campaigns promoting naturalization in anticipation of the upcoming presidential election.

Plan Ahead: Biometrics Now Required For Re-Entry Permits BEFORE Leaving the U.S.

Permanent residents who require a re-entry permit to return to the United States after traveling abroad for more than an year can no longer simply file and leave, according to a new USCIS requirement.

Now, they must wait for an appointment to provide fingerprints and photographs (i.e. biometrics) first.

The new policy also applies to refugees needing a Refugee Travel Document, but it does NOT apply to those seeking Advance Parole. The same Form I-131 is used for all three forms of permission to return.

This new requirement became effective March 5, 2007. After providing biometrics, the applicant may then travel and, just as before, and have the approval sent to the embassy for pick up overseas.

Although USCIS offers an expedite service, this new requirement promises to wreck further havoc on travel plans, given the frequent delays in processing applications.

Update On Family Visa Processing Under New Name Check Policy

The immigration service has provided AILA with the following explanation about processing family-based green card applications in light of the new policy regarding name checks that have been pending for more than 180 days:

“Assuming that an application is otherwise ready to be placed into the interview queue, and the only item remaining is the name check, then the application will be placed in the queue in time for the application to be ready to be scheduled for interview as of the 180th day.

If the application is not ready to be placed into the interview queue (for example, if the biometrics have not been taken), then the application will not be placed into the queue, even if the name check has been completed.

NBC reminds AILA members that the Field Offices schedule cases when they have available interview slots. The automated system by which Field Offices schedule interviews automatically schedules applications on a first-in, first-out basis (based on the date the filing was received at USCIS, which usually would be when received at the Lockbox), once the NBC identifies a case as interview ready.”

For more information, see our other articles: Updated Q and A Re USCIS New Name check Policy Available, 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. 

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

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

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.