March 14, 2012
The data disclosed by USCIS shows that more than three months after the November 28, 2011 deadline to submit the CW petitions, less than 1/5th of the petitions have been processed. How can this be acceptable? How long should the workers be expected to live in limbo and uncertainty?
At this rate, some permits may have to be renewed before initial permit is accepted or denied. In fact, I received an email from a foreign worker who is frustrated with the H1B application delays. The applicant wrote in part:
"I have a friend who got her EAD, (I filed mine ahead of hers.) which is expiring by the end of this month. She filed to renew such EAD last week and paid $380 for the second time. She was advised by USCIS to file a month before the expiration for her to continue working. Ms. Wendy, we wonder how long will it take them to decide on our HIB petitions? EAD is good for 120 days only, how many times should we apply and pay for such work permit until we get HIB results? I'm so worried, what if my petition is not approved? I just don't know what to do next."Just how long will it take for USCIS to process H1B applications? If the applications cannot be processed in a timely manner, then at least they should extend the validity period of an EAD from 120 days to a year. Just how long will it take to process all of the CW applications? Just how long will it take to process all of the applications for parole and the other categories?
This disorganized process has dragged on for years with delays contributing to the problems. The first delay was caused by Governor Fitial's lawsuit that challenged P.L. 110-229 in an attempt to maintain local control of immigration. The second delay was caused by the governor, Rep. Gregorio Sablan and other leaders who requested, and were granted, a 180-day delay in the enactment of the law. Instead of the law being enacted on June 1, 2009, the date of enactment was moved until November 28, 2009. The third delay was caused by the DHS. The department promised to release the final rule by March 2011, but it was not published until September 2011, only a few months before the November 28, 2011 shift to federalization. There was no "orderly transition" from the CNMI immigration system to the federal immigration system, as was promised in the law.
Incredibly, with only 1/5th of the CW petitions reviewed, the USCIS still does not demonstrate any urgency in completing the process. Mariana Gilomer, a USCIS public affairs officer said that the USCIS does not currently "have the data for CW approvals and denials." The Saipan Tribune reported:
Gitomer said USCIS does not have data at this time for CW petition approvals and denials.The USCIS cannot do anything to speed up this process' to speed up the biometric? "As an appointment becomes available"? What is the average wait time for an appointment? (According to my friend's email the wait time is too long!) How much of a backlog is there? USCIS cannot dispatch some employees to be stationed in the CNMI to conduct biometrics processing until the job is done?
She said CW petitions are adjudicated as the biometric results become available for review and USCIS does not have a projected completion date.
“USCIS has reviewed over 1,000 petitions. Many of the petitions did not contain the information needed in order to make a final decision. Several petitions have already received a 'Request for Evidence' and, when a response to such request is received, the petitions will be reviewed for approval or denial,” Gitomer told Saipan Tribune in an email response to questions.
If foreign workers have not yet received their appointment for biometrics yet, they should not be concerned because, according to Gitomer, the Application Support Center is able to collect biometrics for approximately 128 people per day.
“The appointments for the biometrics collection are not scheduled more than one month in advance. Majority of the CW beneficiaries are currently waiting in queue for a biometrics appointment and will receive notification as soon as an appointment becomes available,” she said.
Gitomer explained the denial and appeal process, which will surely add even more months to the final determination. After a denial, a foreign worker could not work and would be out of status "and would be required to exit the CNMI." The Tribune reported:
If and when a CW petition is denied, Gitomer said “USCIS will afford each petitioner an opportunity to demonstrate that they are eligible for the CW classification.”Clearly, the agency has no sense of urgency. Perhaps these bureaucrats are unaware of, or do not care about the unstable and anguishing situation that most of the long-term foreign workers find themselves in. Some have even been turned away at federally funded offices because they do not have a CW permit.
“If USCIS determines that the petition may not be approved, the petitioner will receive a detailed notice explaining the reasons for denial and their appeal rights,” she added.
In cases when CW petitions are denied and employers appeal the denial, the workers cannot continue to work until the appeal process is completed.
“The decision resulting in the denial of Form I-129CW leaves the beneficiary without lawful immigration status. Absent an approved application or petition which would bestow valid immigration status upon the beneficiary, he or she would be considered present in the United States in violation of the law and would be required to depart the CNMI,” Gitomer said.
How can the foreign workers plan if they do not know if their application has been accepted or denied? How long will they live in limbo? Who pays for their exit if their petitions are denied? Will it be their last employer of record, or are they to magically come up with the airfare when most are owed thousands from criminal-thief employers who stole wages and other benefits from them?
Overall, the U.S. Government has done a truly poor job implementing the CNRA and the U.S. Congress has failed in providing adequate oversight.
The trainings that USCIS has provided for employers and employees have been exemplary and are perhaps the one area of the transition where sincere efforts are evident. USCIS and DHS personnel have flown from Hawaii or the states to conduct trainings, have provided email and online updates, and have conducted webinars for both employers and employees. Is is unfortunate that the areas of customer relations and the timely processing of applications has not met these same standards.
By all reports, the USCIS office was not properly staffed or funded to handle the transition of the CNMI immigration system to the federal system in an organized, methodical or humane manner. The processing of the applications takes place off-island, thousands of miles away from the CNMI. Foreign workers have reported frustration with the CNMI's USCIS Office. Some have said that they have been treated rudely at the office, while others have reported receiving conflicting information from officials. Why can't the Department of Homeland Security increase the staff of the CNMI USCIS Office or the staff of the California USCIS Office where the applications are being reviewed to ensure an "orderly transition"?