Two bureaucracies are “better” than one when it all “ends well.”

Sunday, October 18th, 2015
By: Jonathan MontagJ.D.

I recently wrote about how USCIS eschews interaction with attorneys and severely limits the ability of attorneys to interact with it during the adjudication process. Combine USCIS with the Department of State, and the inaccessibility of the bureaucracy is more frustratingly apparent.

Here’s my recent example. A Mexican family (Mexican-ness is important to the story. It is not a gratuitous detail.) came to see me about a long-pending visa petition filed twenty years ago by a parent for his son. As you may know, there are different categories of relatives that can petition for other relatives. These different relationships are listed as preference categories. First preference is the unmarried adult children of United States citizens. There are two second preferences – Category 2A is for spouses and children (under age 21) of permanent residents. Category 2B is for adult children of permanent residents. The Third preference is for married adult children of United States citizens. The Fourth Preference is for siblings of United States citizens. When a petition is filed, the filing date, referred to as the priority date, is added to a waiting list. When a priority date reaches the top of the waiting list, then a visa is available and the beneficiary of the petition can receive permanent resident status. The State Department posts the waiting list each month in what it calls the Visa Bulletin.

You may notice some missing close relationships. There is no category for parents of permanent residents. There is no category for married sons and daughters of permanent residents. Parents, spouse, and children (under age 21) of United States citizens are not preference categories, but are relationships where petitioning can occur. These relationships are termed immediate relatives and there is no wait list for them. Visas are immediately available for immediate relative.

In the case the the Mexican family, since the father petitioned for his son, the father became a United States citizen. The petition went from the 2B preference to the First Preference. When this happens, the petition is automatically “upgraded” from 2B to the First Preference. A look at the Visa Bulletin for Mexican First and 2B priority dates in the November Visa Bulletin shows something somewhat astonishing:

First Preference Mexico: December 1, 1994
2B Preference Mexico: August 22, 1995

The 2B preference is in advance of the First Preference. If a petition for a son or daughter was filed on January 1, 1995, a visa would be available if the father is a permanent resident (Petition was filed before the August 22, 1995, 2B priority date) but not if the father was a citizen (Petition was not filed before the December 1, 1994, First Preference priority date). Here is a situation where it is clearly advantageous to not become a United States citizen.

There is a remedy to that anomaly. In a fix made thirteen years ago, thanks, in large part, to Senator Diane Feinstein, petitioners who become United States citizens can opt out of the automatic conversion from 2B to First Preference thereby avoiding punishment of becoming a citizen.

Now, back again to the Mexican family. We needed to opt out of the automatic conversion as the petition was very close to current in the 2B Preference Category, but far from current in the First Preference Category.

Even though visa petitions are filed with USCIS (and before there was a USCIS, the INS) the custodian of most approved visa petitions is the State Department. They monitor the wait lists and publish the Visa Bulletin. The State Department office that handles the petitions in the State Department is the National Visa Center (NVC). I contacted the National Visa Center and asked to opt out of automatic conversion. Gratefully, the National Visa Center has an email inquiry system and actual communication, though hysterically cryptic most of the time, takes place. I few weeks after I contacted the NVC, they responded that the Department of Homeland Security (DHS) is in charge of the handling of opting out requests and I should contact DHS.

Here is an example of that hysterical crypticness. The NVC tells me to contact DHS. DHS is a huge department composed of huge agencies. Am I supposed to contact the Coast Guard? The Secret Service? FEMA? I decide the right agency to contact is USCIS. But where? I called the USCIS 800-number, though deeply skeptical that I would get a correct answer, figuring in the USCIS scripts for operators, there would be nothing about opting out. Fortunately or unfortunately, when I called USCIS, the operator informed me the computers were down and I needed to call back. I figured, let me contact USCIS at the U.S. Consulate in Mexico where permanent residence visas are processed. This decision had two things going for it:

1. Since the petition was for a Mexican family, then the Consulate in Mexico would handle the case and the USCIS office in Mexico is right there at the Consulate;

2. The office is rare among USCIS offices in that there is an email to contact them directly.

I emailed the USCIS office in Mexico and discussed how the family wants to opt out of the automatic conversion. I sent the email from the NVC so they would see why I was contacting them and not the NVC. I got an email a couple of weeks later explaining that the case is not at the Consulate in Mexico yet (it is still at the NVC), and I would have to contact the USCIS Service Center where the petition was approved nineteen years ago.

You may now be thinking, he ought to have known that contacting USCIS in Mexico before the case was processed through the NVC would be a waste of time. I have two defenses. First, I spent a considerable amount of time hunting around for instructions about how to opt out. I found plenty about the opt out provision, but little about how do to it. One USCIS memo I found, from about ten years ago, advised petitioners to contact the USCIS office in Manila, the Philippines, to request an opt out. The memo was discussing how the impact of the automatic conversion between categories upon a petitioner’s becoming a United States citizen was most obvious for Filipinos, and then advised contacting USCIS in the Philippines to opt out. I realized it would be dumb to contact Manila about a Mexico case, but I figured what was good advice for Filipinos should hold true for Mexicans. My second defense is that USCIS in Mexico actually has an email, so it was too good to pass up, especially when there was really no other option.

The option failed, unfortunately, and the new instruction was to contact there Service Center. There is no email to contact the Service Center and no way to my knowledge to contact anyone there with a specific question about how to request an opt out. I was forced to revert to the pre-millennium play book – I wrote a letter. The Service Center puts an address on its receipts, and so at least I had an actual address to write to it at. Of course there was no person to follow up with and no assurance the letter would not just be thrown in the trash, or the equivalent, put in the file and ignored, but, to paraphrase Donald Rumsfeld, you fight the bureaucracy with the tools you have. In this letter, I included copies of the emails from the NVC and USCIS in Mexico so they would understand how I ended up writing the Service Center.

About two weeks later I got an email from the NVC. It explained, after I deciphered it, that USCIS does not handle opt outs, the NVC does and rest assured, the case will be treated as a 2B Preference case. The email contained no context, like, “We would like to correct our previous incorrect information and advice that started you on a two month wild goose chase.” The email simply stated that it was allowing the family to opt out. Did someone at the Service Center read my letter and elevate it to someone who could contact someone in another agency (from the Service Center to the NVC) in another Department (from DHS to the State Department) to correct the NVC and get the case on the right track? Did someone at the USCIS office in Mexico follow up with the Department of State and prompt the NVC to correct itself?  Did someone at the NVC think about the initial email to me, investigate it, and correct the advice? I will never know how the NVC came to correct its initial misinformation, but if weeks and months of emails and letters and research and waiting until the correct result is reached is ending well, than all’s well that ends well. Posted October 18, 2015.


 

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