N-400 naturalization applicants who live in Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennesee, Texas, Vermont, Virginia, West Virginia, Puerto Rico, or the U.S. Virgin Islands file their N-400 applications by regular mail with the USCIS Dallas Lockbox at

USCIS
P.O. Box 660060
Dallas, TX 75266

Express Mail and Courier deliveries (which I highly recommend) must send their N-400 application to:

USCIS
ATTN: N-400
2501 S. State Hwy. 121 Business
Suite 400
Lewisville, TX 75067

N-400 naturalization applicants who live in Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Territory of Guam, or the Commonwealth of Northern Mariana Islands file their N-400 applications by regular mail with the USCIS Phoenix Lockbox at:

USCIS
PO Box 21251
Phoenix, AZ 85036

For Express Mail and Courier deliveries the N-400 must be sent to:

USCIS
ATTN: N-400
1820 E. Skyharbor Circle S
Suite 100
Phoenix, AZ 85034

Also, I just received approval on a regularly processed I-131 advance parole application in 24 days.

This has very important implications for the timing of H-1B and E-3 applications as they relate to new hires and extensions. Employers will need to allow for delays in LCA certifications of at least 7 days rather than the instant certifications that were previously issued.

The Whittier Daily News reports here on their opening show on June 26.

The USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

It will still NOT accept premium processing requests for Form I-140, Immigrant Petition for Alien Worker, that involve EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

This is very welcome news.

With premium processing service, the USCIS guarantees that for the $1,000 processing fee (in addition to the usual application fees), it will decide an application within 15 calendar days. If it doesn’t meet that deadline, the USCIS refunds the $1,000 fee but still continues to process the request as part of the Premium Processing Service.

I have never had a premium processed application not decided within the 15 days so the program definitely works.

I will post again with more details about the approval in the next day or two.

My client filed his N-400 Naturalization application on March 1, 2006 and he had his naturalization interview on June 20, 2006. Then nothing for almost three years.

After my client tried on his own to contact the USCIS to get action on his N-400 and was told only that his N-400 was still pending, he contacted me.

I promptly filed a Writ of Mandamus on his behalf in the United States District Court for New Jersey on April 7, 2009, naming among others, Eric Holder, the Attorney General of the United States and Robert Mueller, the Director of the FBI (responsible for background checks).

Almost immediately after I served the government with the Writ of Mandamus, I was contacted by a U.S. Attorney who told me that the USCIS was going to approve the N-400.

My client’s naturalization ceremony was held on June 10th!

Writs of Mandamus work.
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The report mainly concludes that anyone in the U.S. without proper immigration documentation can’t be denied a marriage license just because of their immigration
status or only because they don’t have a Social Security number.

County clerks in many states have been refusing to issue marriage licenses to undocumented immigrants because they think that an applicant for a marriage license has to have a Social Security number. But, according to the report, this is a misunderstanding of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which was enacted in 1996. But that law dealt mainly with child support issues, not marriage and immigration issues.

As of January 2009, eight state attorneys general have issued legal opinions regarding
whether a state can deny a marriage license to an applicant who does not have a Social
Security number and in every case the attorney general found that a state cannot deny a license to applicants who do not have a Social Security number.

Here is a link to the entire report.

Previously, if an I-90 applicant presented a national security concern or had a record of arrest or presented an “Egregious Public Safety” concern, then the USCIS adjudicator was instructed to immediately suspend adjudication of the 1-90 and refer the case to ICE.

The problem with that position, as pointed out in the Neufeld memo, is that an I-90 applicant who is a Lawful Permanent Resident LPR holds that status until he or she either abandons it themselves or has it revoked through rescission or removal proceedings. Therefore, until the LPR status is either abandoned or revoked, the applicant is entitled to evidence of his or her status.

Now, the Neufeld memo provides that all 1-90 applications will be adjudicated when all of the basic filing requirements and conditions have been met:

1. The applicant has established his or her identity; and

2. It has been established that the applicant is a lawful permanent resident.

Once those conditions have been met, the I-90 should be approved regardless of whether derogatory information comes up during the fingerprint and IBIS checks. If that happens, the I-90 should still be approved first and the derogatory information issue addressed second, presumably with a referral to ICE.

In the past, some applicants have been served with Requests for Evidence (RFE) asking for arrest records or court dispositions. Now any RFE that is issued must be limited to requesting supporting documentation related to establishing identity or status.
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It announced that it has received approximately 45,500 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. It continues to accept petitions subject to the general cap.

I can report personally that the most recent H-1B regular cap I-129 petition that I filed was filed on May 11 and it was approved on May 15 – premium processed.

Also, the USCIS announced that is has received approximately 20,000 petitions for aliens with advanced degrees, consistent with its prior update and it reconfirmed that it is still accepting advanced degree petitions because it assumes that not all the petitions it received are approvable.

It’s beginning to look like the cap isn’t going to be reached any time soon and, who knows, maybe not at all this fiscal year.

Then USCIS also announced that it has received approximately 20,000 H-1B petitions for aliens with U.S. advanced degrees subject to the 20,000 advanced degree cap. However, the USCIS says it will continue to accept additional advanced degree petitions because it knows from past experience that some number of the advance degree petitions are not approvable for any number of possible reasons.

I will update this blog on the H-1B account as soon as the USCIS makes further announcements.

The BIA held that when an alien has an unopposed motion to continue removal proceedings because he or she is waiting for the USCIS to decide a pending family-based visa petition, the continuance should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.

The BIA outlined the factors for an Immigration Judge to consider when determining whether good cause exists to continue the removal proceedings, including: the USCIS position on the continuance request; whether the underlying visa petition is prima facie approvable; whether the alien is statutory eligibility for adjustment of status; whether the alien’s application for adjustment merits a favorable exercise of discretion; and the reason for the continuance request.

In this case, the alien was placed in removal proceedings but he claimed relief based on his marriage to a U.S. citizen and his pending I-130. He was granted four continuance requests by the IJ while waiting for the USCIS to decide his I-130. However, the IJ denied his fifth continuance request because, he said, was expected to complete cases in a
reasonable period of time by meeting certain “case completion goals” set by
the Department of Justice.

The alien appealed and the Third Circuit Court of Appeals held that the IJ’s denial of the alien’s fifth continuance request was arbitrary and an abuse of discretion because it was based solely on case-completion goals. The Court remanded the case back to the BIA.

Keep in mind that a family-based adjustment of status application involves two basic steps . First, the U.S. citizen or lawful permanent resident petitioner files an I-130 on behalf of his or her qualifying family member, who is the beneficiary of the visa petition. Once the I-130 is approved and an immigrant visa is immediately available, the alien may apply for adjustment of status. The problem is that if an alien is in removal proceedings while waiting for the I-130 to be approved, it may take a very long time for the approval to come through—too long for the IJ’s patience and it is the IJ who has the discretion to either grant or deny a request to continue removal proceedings.

The BIA ruled that discretion should be favorably exercised (and the continuance request granted) where a prima facie approvable visa petition and adjustment application have been submitted during removal proceedings. The ruling makes a lot of sense given the significant interest at stake—the chance to acquire lawful permanent resident status and not to be removed from the U.S. and separated from family while waiting for the USCIS to make a decision on an I-130.

The BIA then laid out the factors for an IJ to consider. Again, those factors are
(1) the DHS response to the motion; (2) whether the underlying visa petition
is prima facie approvable; (3) the respondent’s statutory eligibility for
adjustment of status; (4) whether the respondent’s application for adjustment
merits a favorable exercise of discretion; and (5) the reason for the continuance
and other procedural factors.

These factors are illustrative, not exhaustive and the BIA was even more specific about what an alien should actually submit to an Immigration Judge to assist the Judge in, hopefully, granting a continuance grant.

One thing is for sure—an Immigration Judge may not consider compliance with his or her case completion goals as a proper factor in deciding a continuance request.

The USCIS had earlier denied the adjustment of status application that was filed by Nelly Lockhart because, it said, she was no longer an “immediate relative” since her U.S. citizen husband died within two years of their qualifying marriage.

For the 6th Circuit, it was an issue of first impression although, as I noted in an earlier post, the opposite decision was reached by the Third Circuit, based in Philadelphia, in Robinson v. Napolitano, 554 F.3d 358 (3d Cir. 2009).

The Sixth Circuit’s ruling is the better reasoned.

Mrs. Lockhart is a citizen of the Philippines, who was admitted to the United States in December, 2003 and she married a U.S. citizen in January, 2004. Mr. Lockhart filed Form
I-130 (Petition for Alien Relative) on his wife’s behalf. As is routine, Mrs. Lockhart simultaneously filed an I-485 (Application to Adjust Status) and the USCIS began processing the applications. The USCIS did not make a decision before December, 2005, when Mr. Lockhart died suddenly of a heart attack. At the time of Mr. Lockhart’s death, he and Mrs. Lockhart had been married for one year and eleven months.

After it learned of Mr. Lockhart’s death, the USCIS denied the I-130 and the I-485 on the ground that, upon Mr. Lockhart’s death, Mrs. Lockhart was no longer the “spouse” of a United States citizen and therefore she wasn’t entitled to treatment as an “immediate relative”. It then placed Mrs. Lockhart in removal proceedings. Mrs. Lockhart filed a petition for a writ of mandamus asking that the USCIS be compelled to rule that she was an “immediate relative” and approve the I-130 and I-485.

The case made its way to the 6th Circuit Court of Appeals which ruled in her favor.

The Sixth Circuit held that the language in the law referring to the two-year duration granted a separate right to an alien widow to self-petition, within two years of the citizen spouse’s death and that it didn’t limit the definition of “spouse”.

The Court also considered the ordinary, contemporary, common meaning of the term “spouse” because the Immigration Act itself does not define “spouse”. The Court said the legal, as well as the ordinary, meaning of ‘spouse’ is ‘one’s wife or husband’ and a ‘surviving spouse’.

The Court’s ruling makes common and legal sense and offers precedential support for others who may find themselves in Mrs. Lockhart’s unfortunate circumstances