VOL. XIV, no. 19; May 2008, week 2
Posted : May 09, 2008

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"We know your immigration matters!" ^SM

The MurthyBulletin is the eNewsletter on immigration from the Murthy Law Firm. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm. Full Disclaimer available.
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TOPICS in this Edition of the MurthyBulletin :

1. New Electronic Form DS-160 for Nonimmigrant Visa Applicants

2. House Hearing on Unused Immigrant Visas and USCIS Backlogs  

3. Good News on Mandamus Lawsuits for Delayed Naturalization Applicants

4. MurthyDotCom : Did You Know about Our Page for Employers and Employees?

5. Important Processing Times and Dates

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Engaging the Murthy Law Firm : Our office can conveniently and efficiently represent clients located anywhere in the United States or abroad on U.S. immigration matters.

Consultations with attorneys at the Murthy Law Firm : You may contact our office to schedule a one-time paid consultation with no further obligation. A scheduled consultation with an attorney at the Murthy Law Firm provides you with details and recommendations based on the specific facts of your case. This will help you with making the right decisions based on the legal options and strategies available.

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1. New Electronic Form DS-160 for Nonimmigrant Visa Applicants
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The U.S. Department of State (DOS) published a final rule in the Federal Register on April 29, 2008, amending the regulations related to the application for a nonimmigrant visa. The changes offer a completely electronic application form, referred to as the DS-160 Electronic Form; an alternative to Form DS-156. Because this final rule is exempt from notice and comment rulemaking, it became effective on the date of publication, April 29, 2008.
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While the final rule still allows for filing an application using Form DS-156, it proposes eventual elimination of that form; replacing it with DS-160. As of the time of this writing, DS-160 is only available for use when applying for a visa in Monterrey or Nuevo Laredo, Mexico. The DS-160 is available through the DOS Consular Electronic Application Center at https://ceac.state.gov/genniv/. The DOS Bureau of Consular Affairs WebSite still carries the DS-156.
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Requirements for Electronic Filing of Form DS-160
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According to this rule, the new visa application on Form DS-160 must be completed electronically and signed by clicking the box designated Sign Application. Applicants under 16 years of age, or other applicants who are unable to sign the form because of some physical incapacity, may submit applications signed by their parents, guardians, or other individuals having legal custody over them. The requirement of filing the new form electronically is not waived, even if personal appearance is not required. All supporting information, such as the applicant's biometrics and even the applicant's statements, will become part of the application. After the issuance of a visa, the original documents should be returned to the applicant. Duplicate copies may be retained in the consular files.
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Conclusion
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The Murthy Law Firm has been unable to confirm that the new Form DS-160 is being used and/or is required at this time. It appears that the consular posts and the Bureau of Consular Affairs are still instructing visa applicants to file DS-156 under the new provision, which gives permission to a consular officer to direct an applicant to submit DS-156 in lieu of the new DS-160. It remains to be seen exactly when and how the new rule will be more widely implemented. Those who intend to apply for a nonimmigrant visa for travel to the U.S. should anticipate that the new electronic visa application form may be required in the near future. MurthyDotCom and MurthyBulletin readers should always check the websites of the consulates where they will apply, as well as the DOS links provided above, for updated information on the forms to use for visa applications.
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2. House Hearing on Unused Immigrant Visas and USCIS Backlogs  
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The Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law of the U.S. House of Representatives Judiciary Committee held an April 30, 2008 hearing on wasted or unused immigrant visa numbers and growing USCIS backlogs. These backlogs have increasingly drawn public attention as one of the major roadblocks to obtaining U.S. permanent resident status, known as the "green card," for a great number of foreign nationals who are eligible in all other respects. Those who testified before the Subcommittee included: Michael Aytes, U.S. Citizenship and Immigration Services (USCIS) Associate Director for Domestic Operations; Donald Neufeld, USCIS Acting Associate Director for Domestic Operations; Stephen A. Edson, U.S. Department of State (DOS) Deputy Assistant Secretary of State for Visa Service; and Charles Oppenheim, DOS Chief of Visa Control and Reporting Division. Following is a summary of the testimony on these topics of interest to MurthyDotCom and MurthyBulletin readers.
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Testimony Available
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The testimonies of Mr. Aytes and Mr. Edson are available to the public online. Their statements reflect the views of the USCIS and the DOS, which are the two agencies involved in the allocation of immigrant visas and responsible for case backlogs.
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Aytes on Immigrant Visa Allocation and USCIS Allocations
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In his testimony, Mr. Aytes provided a description of the process used in allocating visa numbers, based on a specific case category and the applicant's country of birth. As regular MurthyDotCom and MurthyBulletin readers know from our many articles and NewsBriefs on the subject, one may acquire the status of Lawful Permanent Resident (LPR) through a variety of different categories. Those include family-based, employment-based, diversity lottery, and refugee / asylee status. Most of these categories are subject to numerical annual limitations. In addition, there are per-country limitations that impact individuals from the high-demand countries of China, India, Mexico, and the Philippines. Generally, while there are many possible categories of cases, there are two major mechanisms for the final stage of the permanent resident case:

1) Filing an application with the USCIS to adjust status on Form I-485
2) Obtaining an immigrant visa from the DOS, at a U.S. consulate abroad

Mr. Aytes indicated that the USCIS acts in accordance with the DOS, trying to make sure that no visa numbers go unused in any specific year. Per Mr. Aytes, there were 1,052,415 individuals who became LPRs in 2007 in all categories. In order "to maximize the use of the limited number of visas available annually, [the USCIS] increased staffing, enhanced analytical capacity, [provided for] more detailed and strategic management of monthly production, and [worked in a] close partnership with DOS to share greater information."
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Mr. Aytes acknowledged problems that still prevent the USCIS from efficient and accurate visa allocations. For example, once the visa number becomes available, based upon the cutoff dates reflected in the monthly DOS Visa Bulletin, this allows qualifying pending cases to be approved and allows for the filing of new cases with the USCIS. It is essentially a system where, whenever the "back door" is open for case approvals, the "front door" is also opened to accept any cases with priority dates prior to the cutoff date set in the Visa Bulletin. The USCIS is unable to limit the actual number of I-485 applications filed, as it is all based upon the DOS Visa Bulletin, which was designed to reflect available visa numbers for cases that are pending and ready for approval. Thus, in cases where there are more applications received than there are visa numbers actually available (which is what happened in the summer of 2007), this results in a backlog of cases. Many applicants have to wait for several years before their applications can be adjudicated, as there are simply not enough visa numbers to allow for case approval. Over the last several years this resulted in an ever-growing backlog of cases and an inventory of applications that the agency is unable to process.
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To address these problems, "the USCIS has adopted a production strategy that focuses on completing cases where visas are immediately available and on working cases to the point just short of approval," where no visa numbers are yet available. What this means is that cases are reviewed without regard to the availability of visa numbers and, if everything is in order, they are made ready for approval. They are then acted upon once the visa numbers become available, which could be many months or even years later.
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Edson Testimony for DOS
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Mr. Edson has provided additional information on the mechanism and methods of visa allocation when it comes to immigrant visa issuance by the DOS. While acknowledging that some visa numbers have not been allocated in the past and, therefore, ultimately were wasted, he reminded the Subcommittee members that the DOS has to act under the law that prohibits issuing more visas than the congressionally mandated number. Therefore, the DOS comes close to the maximum by using about 95 percent of all visas available.
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Mr. Edson has praised the agency for its efforts in enhancing security and increasing efficiency in recent years. While commenting on the VisaGate incident, Mr. Edson stated that "[t]he situation last summer didn't disadvantage any applicants, [but the agency] would make every effort to avoid a repeat of the confusion applicants experienced in July." Like Mr. Aytes, Mr. Edson specified that the key to successful monitoring of visas issued and case backlogs is working closely with the "USCIS partners to avoid further problems." In addition, Mr. Edson provided the Subcommittee with the DOS Visa Availability Fact Sheet and Background Information in order to explain further the complex process by which the agency must abide when determining cutoff dates and visa allocation.
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Conclusion
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Both the USCIS and DOS officials testifying before the Subcommittee on Immigration acknowledged current problems with wasted visas and backlogs of cases. They also provided background information on the process in an attempt to explain these problems. Unfortunately, neither testimony provided any projections as to how soon these problems would be resolved and/or what concrete steps are being taken to assure that all visas are used and backlogs are eliminated. As these issues are of great importance to many LPR hopefuls, we at the Murthy Law Firm will provide updates on this topic as information becomes available.
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3. Good News on Mandamus Lawsuits for Delayed Naturalization Applicants
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In response to ongoing delays by the United States Citizenship and Immigration Services (USCIS) on N-400 Citizenship / Naturalization cases, a class action lawsuit was filed on behalf of all permanent residents residing in the area served by the USCIS New York District office for those applicants whose naturalization cases were delayed beyond six months. This lawsuit was filed by two public interest groups and a private law firm. This case is captioned Virginia Milanes v. Michael Chertoff and was filed with the U.S. District Court for the Southern District of New York. The estimated class size, as set out in court documents, may exceed 100,000 naturalization applicants.
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Federal Lawsuits Correct Delayed Naturalizations
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As regular readers of MurthyDotCom and the MurthyBulletin will recall from our April 11, 2008 article, Mandamus Lawsuits Remain Effective in Immigration Cases, federal lawsuits have been used to resolve background-check delays that can last for several years. Although the U.S. Department of Homeland Security (DHS) has set a goal for clearing the name-check backlog and making the process more efficient, it is unlikely that this initiative will help those who wish to naturalize to participate in the upcoming presidential elections in November 2008. The plaintiffs include many individuals who have been waiting years - as many as six years in a few instances - for their naturalization cases to be processed.
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Voting Key Issue
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The lawsuit claims that the class of applicants will be irreparably harmed because, without citizenship, they will be denied the right to vote in the November 2008 presidential elections due to unreasonable government delays in processing their naturalization cases. As regular MurthyDotCom and MurthyBulletin readers know, there is emphasis on the role of immigration policy in the election, and the desire of the plaintiffs to voice their opinions on these issues.
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Other Class Action Lawsuits on Religious Grounds by Widows and FOIA Delays
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As reported in our March 7, 2008 article, New Developments in Mandamus Lawsuits, a similar case in Florida was filed by Muslim plaintiffs alleging that the delay in processing their naturalization applications was due to their religious faith. Additional lawsuits have challenged the USCIS on the denial of immigrant benefits to foreign national widows of U.S. citizens, in the case of Carolyn Robb Hootkins, et al v. Michael Chertoff, et al, and USCIS responses to Freedom of Information Act requests in the case of Hajro v. USCIS.
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Judge Orders Production of Relevant Documents
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The federal judge in the Milanes case ordered the government to produce important documents that may be needed to resolve the case before the general elections. Federal law requires the USCIS to process naturalization applications within a reasonable time, and contains a 120-day deadline for a USCIS decision after the naturalization interview, which, in many cases, is not happening due to pending FBI background checks and other issues.
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Conclusion
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Although the federal judge’s decision in this case is a victory for those who have been waiting many years for their citizenship, it is still an initial step towards resolving the delays caused by the name-check system. There may be a hearing in this class action suit early this summer. The Murthy Law Firm will continue to provide updates on mandamus issues and efforts to address naturalization and other case processing delays.
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4. MurthyDotCom : Did You Know about Our Page for Employers and Employees?
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At MurthyDotCom we know that many immigrants come to the United States chasing employment opportunities. On the other side of this equation are the U.S. employers who are looking for the best, brightest, most willing job applicants to fill positions in their companies. In the middle is the U.S. government. Among the government agencies affecting this match are the U.S. Department of State that determines whether to grant a visa to a worker bound for the U.S.; the Department of Homeland Security, whose dual role is to grant benefits as well as secure borders; and the Department of Labor that seeks to protect the U.S. workforce, while facilitating employer access to the non-U.S. workers they require. Find relevant news effecting employers and immigrant workers on our page for Employers and Employees on MurthyDotCom.
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MurthyChat : The next MurthyChat session will be Monday, May 19, 2008, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Monday of each month. Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions. 
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5. Important Processing Times and Dates
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Processing Times : For links to processing times for the USCIS Service Centers, district (or local) processing times, the Administrative Appeals Office, Department of State visa bulletin, and Department of Labor dates for the processing of labor certification applications.

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