Fiancee Visa

Delays in removal proceedings are common where a Petition for Alien Relative is pending with the United States Citizenship & Immigration Services (USCIS).  In July, 2009 alone, the Executive Office for Immigration Review (EOIR) identified approximately 17,000 removal cases that have been continued pending the outcome of USCIS decisions on petitions.  On August 20, 2010, USCIS released a Memorandum which outlines the handling of removal matters before the EOIR.

In matters involving a detained alien who has a pending application or petition with USCIS, the ICE Offices of Chief Counsel (OCC) will be required to request that USCIS expedite the adjudication of the alien’s application or petition.  ICE would be required to promptly transfer the alien’s file to USCIS who will be responsible for adjudicating the case within 30 days of receiving the file from ICE.  Where necessary, ICE will be required to ensure that USCIS has access to the detained alien for purposes of conducting an interview.

Where an alien is not detained who has a pending application or petition with USCIS, OCC will be required to request expedited adjudication of the alien’s application or petition by USCIS.  ICE will also be required to transfer the alien’s file to USCIS and USCIS must adjudicate the matter within 45 days of receiving the alien’s file from ICE.  In situations where an application or petition is filed with USCIS by or on behalf of a detained alien and ICE determines that as a matter of law and in the exercise of discretion the alien is eligible for relief from removal, OCC is required to work with the Field Office Director (FOD) and the Special Agent in Charge (SAC) to determine if the alien is under any investigation or is subject to any serious or adverse factors that might weigh against possible dismissal of removal proceedings.  Such adverse factors include, but are not limited to the following: criminal convictions, fraud or other criminal misconduct and national security and public safety concerns.  If no investigations or adverse factors exist, the OCC would be required to move to dismiss proceedings against the alien without prejudice before EOIR.  The OCC would have to notify the FOD of such a motion and once notified, the FOD must release the alien as a result of the dismissal.

If there is an application or petition involving a non-detained alien and ICE determines in the exercise of discretion that the alien is entitled to relief from removal, the OCC is required to promptly move to dismiss proceedings without prejudice before EOIR.  Removal cases that meet the following criteria will be considered for dismissal:

1.    The alien must be the subject of an application or petition pending with USCIS, have a current priority date, if required, for adjustment of status;
2.    The alien is eligible for relief as a matter of law and in the exercise of discretion;
3.    Where required, the alien must submit a completed Form I-765 or Application to Register Permanent Residence or Adjust Status; and
4.    The alien must be statutorily eligible for adjustment of status.  Where there is a ground for inadmissibility, a waiver must be available.

Even though an alien may be eligible for relief for a number of reasons, ICE may oppose such relief on the basis of discretion.  In such matters, ICE is required to pursue prosecution of the case before EOIR even if USCIS has approved the alien’s application or petition.

Each OCC will be required to develop standard operating procedures (SOP) in conjunction with the local USCIS field office in order to identify removal matters that involve pending applications or petitions with USCIS.  The SOP should address the handling of cases identified for expedited adjudication and those matters deemed to be eligible for dismissal.  Requests to expedite shall be made by the OCC to USCIS not the alien’s attorney, accredited representative or the Immigration Judge

(IJ).  The SOP must establish:

1.    A method whereby the ICE attorney handling the Master Calendar Hearing determines whether a case is eligible for expedited processing of a pending application or petition;

2.    A way for ICE to communicate the expedited request to USCIS;

3.    A mechanism that enables USCIS to convey to the ICE attorney handling the subsequent hearing its decisions about the application or petition; and
4.    A process by which an alien’s file will be transferred efficiently to avoid delays in adjudication or immigration court proceedings.