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By Vanessa S. Barcelona

  INS processing delays are at an unprecedented rate at this time. They include pretty much every petition across the board. Understandably, not only does this result in a heightened sense of alarm and impatience on the part of immigration lawyers, but of course, the same holds true for the clients waiting and waiting and waiting for their papers to come through.
The bad news is, it looks like there is a dark cloud hovering over us and it will not go away for quite some time. The good news is, INS recognizes these delays and is receptive to making the changes necessary to alleviate these backlogs.

Case in point: Naturalization delays in the past few years have worsened to the point that some applications have been pending for as long as three years. Of course, clients would be a little bit more understanding if they saw a light at the end of the tunnel.

But what if you have not heard from INS at all and do not know if your application is sitting in a box somewhere without any hope of seeing the light of day, or at least, the desk of an interviewing officer? Y

ou must follow up with the INS regional office with whom you filed the N-400 in the first place. Contact an attorney in your area, to obtain the fax # of the INS for specifically this purpose (status inquiry).

For those of you living in Florida and have filed with the INS regional office in Texas, here is the number to fax your inquiry:

214-767-7405 or 7406. Other jurisdictions covered by the Texas Service Center include, in addition to Florida, the following states: Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas.

Once you have done this, and have not received a reply within 2-3 weeks, it may be best to contact the local INS office where you will be interviewed once the file has been processed by the regional office.
The Miami INS has a great way to follow up on naturalization inquiries. Attorneys who follow up on behalf of their clients are scheduled for a one-on-one meeting with an INS officer, who will be meeting with them with the client's file in front of them. This is done by making the request for a meeting at least 1 week in advance, to give enough time to have the file requested from the regional office, if it has not made it to the local office at that point.
The reason for the delay is then ascertained, and hopefully cured. The client should then expect an appointment letter in the next few months. INS also has a 1-800 number that you should call if you have moved to a different address (this applies to naturalization cases only, and for moves within the State of Florida): 1-800-375-5283.

Adjustment of status applications are a different matter, however, and we should expect to live with delays for quite some time. Delays in the processing of these applications are alarming, to say the least. In August of 1999, the INS acknowledged that the backlog in pending adjustment of status applications had increased from 121,000 in Fiscal Year 1994 to 811,000 by the end of FY 1998. INS, however, is not immune to the problems caused by these delays, and have made processing naturalization and adjustment applications among its highest priorities.

What do we do in the meantime?

If you are filing an adjustment of status application, and have children who will be "aging out" (i.e., turning 21) in the near future, make sure to notify INS in LARGE, BOLD PRINT on the front of your adjustment package. This also works when sending I-130 petitions to INS for minor children who will need to be processed at a foreign consulate prior to their 21st birthday. INS, however, has stated that while it will do everything possible to adjudicate in a timely manner, such applications when filed at least 6 months prior to the minor child's 21st birthday, not much can be done -- nor expected -- if the application is filed within 6 months of the child's birthday. If this is an issue, therefore, one may very well have to consider the prospect of consular processing as an alternative to filing an adjustment of status application.

The concept of "consular processing" has in the past few months, been revisited by immigration practitioners who would have otherwise shunned this option in situations where the client is already in the U.S. Why, after all, would you go through the hassle of travelling half a world away only to be faced by a consular officer whose denial could mean the end of all your hopes and dreams, without the possibility of an appeal? For one thing, consular processing -- at this time -- is a faster way to a green card than adjustment of status is. Second, if you make sure that you do everything right -- in other words, have all your ducks in a row -- the results should not be disappointing. It has been reported that over 50% of denials for immigrant visas at the Manila post are caused by deficient I-864 Affidavits of Support.

Consular officers in Manila have been, in my experience, fair for the most part, and more accessible than many other consular officers in other posts.

Manila, thank goodness, has also resurrected the concept of the visa applicant's right to counsel, and attorneys are now able to stand in line with their clients and be with them during the interview. This concept is simply unheard of in many consular posts.

Manila has also done a very good job, from my experience, in expediting cases where the applicant will turn 21. While they do make attempts to track these cases and expedite when necessary, do not rely on this! Make sure to make it clear with every package sent to the consulate that the applicant MUST be interviewed before a certain date.

Also, make a note of when the package should get there, and call to follow up after such time as you are sure they have received the package. For immigrant visa applications, it is best to call after 10:00 a.m. Manila time. When calling from the U.S., dial: 011-632-523-1001. Dial "O" for the operator immediately, to save on long distance charges, and then when the operator comes on, ask to be transferred to the Immigrant visa section (or non-immigrant) Tip: While a K-1 Fiancee visa is technically a non-immigrant visa, it is processed as an immigrant visa, and you should therefore ask to speak with an immigrant visa officer.

If you should opt not to brave the unfamiliar world of consular processing and do not mind the long wait for the green card while under adjustment proceedings in the U.S., you must make sure that you file your work authorization extensions on time.

While it was possible to get your work authorization cards within 1 month of filing at some time in the past, at the moment it is taking INS more than the legally allowed 90-day processing period for these applications.

Make a conscientious effort to file at least 90 days before your card expires.

INS at this time is interpreting 1 day of work without authorization -- even for those with adjustments pending -- to constitute 1 day of "unlawful presence".

For those adjusting under 245(a) -- minor child, spouse, or parent of a U.S. citizen who did not enter with a C-1D or without papers -- this is not an issue. For those who are adjusting under 245(i) and have already paid the $1000 penalty -- this is also not much of an issue. But for those who were in lawful status at the time of filing -- having INS count days of "unlawful presence" to include days you worked without a work authorization card even after your adjustment was filed may mean the difference between the lesser evil of having to pay a $1000 fine later on (if you CAN adjust under 245(i)), or worse, not even being able to adjust status at all. BE AWARE OF THE POSSIBILITY THAT YOU MAY NOT BE ABLE TO ADJUST AT ALL FOR HAVING WORKED WITHOUT AUTHORIZATION!

It is a tragedy, to say the least, to find that you waited and waited and waited only to have INS tell you that they cannot approve your case because you accrued more than 180 days of unlawful presence.

If you file for your work authorization card 90 days or more b/f your card expires, the INS receipt notice should correctly note the date of receipt. You should then count 90 days from the time of receipt and if you do not have an appointment date by the time those 90 days have passed, you can go to the local INS office with that receipt notice, even though you are going without an appointment and get processed for your work authorization card on that day.

There are many other ways we can live with these delays. In the spirit of cooperation with the Service, and in acknowledgment that logistical limitations have caused much of these delays (they just don't have enough people to deal with the volume!), it is important to be informed of what, if any, you can do to prevent or minimize the harm caused to you by INS processing backlogs.

Do not, however, be led to believe that you can only "live with" these problems. Suits against the INS, which begin with the filing of a writ of mandamus, are not that atypical. ( In a mandamus action, a federal district court can compel an officer or employee of the U.S. government to perform a duty owed to the plaintiff). Many times, however, the threat of one is enough to get INS moving on your case. Having said that, if you are experiencing delays that you feel are not warranted and are causing negative effects on your rights or those of your family members, contact an immigration attorney to find out what steps, if any, can and should be taken on your behalf.


VANESSA S. BARCELONA is a partner with the law offices of Barcelona & Pilarski, P.A. She obtained her law degree from the University of Florida. She is a member of the American Immigration Lawyers Association, the American Bar Association, and the Florida Bar. Please send all e-mails to: vsbarcelona@earthlink.net


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