California Immigration Lawyer Blog

There was recently an article in the Washington Post which indicated that USCIS' backlog was "virtually gone." I have noticed in my San Francisco law firm that most cases are being adjudicated in a timely manner, but there are many that are not. What can you do if your case is one that has been delayed? Here are my suggestions:

• Make an InfoPass appointment. If you have an adjustment of status application or naturalization application that is pending at a local office, make an InfoPass appointment and see what the USCIS officer can tell you. While you may not find out anything, it is important to begin building a record of inquiries if you should decide later to pursue a mandamus application or petition for hearing in federal court, as I will discuss below.
• Write a letter to USCIS. Again, you may learn nothing but it costs only $0.44 to send a letter so it is an inexpensive method by which you can try to determine why your case is being delayed.
• Call the USCIS customer service center number at 1-800-375-5283. Again, perhaps another waste of time, but InfoPass appointments and calls to the 1-800 customer service number are tracked by USCIS. It forces them to send out correspondence. Proof of making such inquiries will help you if you decide to file a case a mandamus or petition for hearing in federal court.
• Write to your Congressional representative. You can use the Congressional Representative website to find your representative. You will receive some kind of response as USCIS will respond to a member of Congress, if not to you.
• File a petition for hearing on naturalization on a naturalization application pursuant to 8 U.S.C. Section 1447(b). If you were interviewed at USCIS and your interview took place more than 180 days ago, you may file a petition for hearing on your naturalization application in federal court. While USCIS may have cleared up its backlog of background checks, I am still seeing cases delayed at USCIS where applicants have been interviewed over 120 days ago. Most of these cases tend to come out of the San Jose field office. There is not a justifiable reason for this delay that I can see.
• File a mandamus application in federal court pursuant to 28 U.S.C. Section 1361 A mandamus is an action to compel a federal agency to carry out a duty owed to the applicant. An example of when this would be used is if you file an adjustment application but USCIS never adjudicates it. It may be used in all sorts of contexts – adjustment, political asylum, visa petitions or naturalization applications if you have not been interviewed. You must allow a reasonable period of time to pass before filing a mandamus. A reasonable time is generally a year since the last action took place. It is a good idea to show that you have tried everything in your power to resolve the case such as inquiries, InfoPass appointments, etc.

Mandamus petitions and petitions for hearing on naturalization applications do work. I have been successful in many cases. If you wish to discuss your case with a San Francisco Bay Area immigration attorney, please feel free to contact me.

Yesterday I went to a training for immigration attorneys in Sacramento, California. The jurisdiction of the USCIS Sacramento field office includes the cities of Vallejo and Benicia so I thought it might be useful to hear about any new local procedures. While I did not learn anything new about what is happening at Sacramento USCIS, I did learn about new procedures being applied to applicants applying for visas abroad.

It seems that applicants who have tattoos are being screened more carefully at their medical appointments. The belief is that an individual with a tattoo may be involved in gang activity which furthermore may lead to that individual engaging in substance abuse. In a published article included in conference materials at the American Immigration Lawyers Association’s (“AILA”) annual conference, immigration lawyers Fernando Rojas and Magda Montiel Davis, explain what is happening:

Panel physicians are asking applicants about the meaning of their tattoos and the medical personnel conducting the exam will take notes describing the tattoo. This interrogation could lead to further questions about the applicant’s possible gang affiliation and criminal history. Applicants with tattoos are also being questioned by the panel physician regarding their substance abuse history. Apparently, panel physicians are making the assumption that applicants with tattoos are more likely to do or abuse drugs. If the beneficiary admits to any drug use, Consulates will use this information against the applicant in order to deny the visa by making a substance abuse finding against them.

A finding of substance abuse is serious because an applicant who is a drug user or abuser may be denied admission to the United States pursuant to Immigration and Nationality Act Section 212(a)(1)(A)(iv). I would counsel anyone carefully who has a tattoo to be very honest about what the tattoo means. An applicant should be prepared to answer in- depth questions about something that may have been inconsequential to them. In my opinion, it would not be a bad idea to have the tattoo removed if possible. Of course the fact that a person has a tattoo does not mean that he or she is a substance abuser. It is scary that examiners are making that assumption, but I do not expect this scrutiny to go away. The best practice is to be aware that this questioning is taking place and to be prepared.

On Thursday, June 25, 2009, at noon, attorneys licensed in California will be able to earn one free unit of continuing legal education credit in ethics on Second Life® by attending a seminar hosted by the Second Life Bar Association. Second Life is a online virtual world where people create avatars and then interact with others in the virtual world. I am a member of the Second Life Bar Association, a legal organization made up of lawyers, students and scholars from around the world who are interested in law and in interacting in a virtual environment.

The Second Life Bar Association has arranged for Carol Langford, an attorney and professor based in Walnut Creek, California, to give a lecture on ethics. Ms. Langford specializes in giving advice on legal ethics and discipline to attorneys, judges, law firms and corporations, and in representing lawyers and law students before the California State Bar in disciplinary and admissions matters. Ms. Langford has devoted a considerable amount of her time to training lawyers in issues involving law practice management. She has also co-written two books: a nationally adopted textbook entitled Legal Ethics in the Practice of Law, 3rd Edition (Lexis Law Publishing, 2007 )and The Moral Compass of the American Lawyer, Truth, Justice, Power and Greed (Ballantine, 1999).

Continue reading " Free Continuing Legal Education Credit in Ethics offered on Second Life® " »

Today I will be giving a presentation on immigration law along with my colleague, V. Thomas Langford, to the Air Force JAG serving at Travis Air Force Base in Fairfield, California. The Air Force JAG Corps are lawyers who provide legal advice to those serving in the Air Force.

Our training today will focus on the basics of immigration law. We will be covering family-based immigration law and outlining the procedures involved in petitioning for a family member to immigrate to the United States. We will also be talking about the Violence Against Women Act ("VAWA") and how an individual may self-petition for immigration status if he or she has been the victim of abuse or mental cruelty. Finally, we will discuss the naturalization laws as they apply to those serving in the military at a time of a conflict.

It seems that I always learn something while preparing for a presentation. While preparing for this one, I learned that staff from USCIS in Sacramento go to Travis Air Force Base twice a month to interview applicants for naturalization and administer the oath of citizenship on the same day. Kudos to USCIS for taking the time to do this. USCIS has an entire website page devoted to military naturalization ceremonies performed in May 2009. Included on it is the photo taken at Travis.

I recently became interested in exploring my genealogy. I was never really interested in it before but as I get older and my relatives get older, I feel it is necessary to find out information before the people with the knowledge are gone.

I have decided to start with what I know best and that is with the immigration documents. Of course, no one in my family has them so I will have to order copies. To my surprise, United States Immigration and Citizenship Services ("USCIS") has a web page devoted to genealogy research called, "Make A Genealogy Request." Also, much to my surprise, the website contains clear and detailed instructions on how to obtain records. On this website you can submit a search for records online or you can file a request through the mail. Perhaps the biggest surprise of all is the speed at which USCIS processes a request. According to their website on genealogy, requests for records are taking only four months. This is an amazing speed for USCIS and I wonder why other applications are not processed as quickly.

It has been the practice of USCIS to keep some of the files and to send the older ones to a National Records Center. In a new agreement announced today between USCIS and the National Archives, records of individuals who were born more than 100 years ago will now be transferred to the National Archives. They will now be considered permanent records and archived. Once a file is transferred, if will be possible to go to the National Archives in Kansas City or San Francisco (if the immigrant arrived at a port in San Francisco) to see the records. A request may be also submitted by mail.

There are some great resources out there. I will keep you posted on how my search goes.