Clash of The Titan Bureaucracies

[JR2008 0]

On July 30th, 2007, the filing and processing of all K-1 petitions shifted to two USCIS Service Centers, California and Vermont. The two service centers have different procedures for reviewing K-1 petitions which are returned by consulates for review and possible "revocation". Vermont reviews the consular returns, following the guidelines of 8 CFR 205.2. California normally allows the already expired K-1 petitions to remain expired, which seems reasonable. After all, the K-1 petition has expired. It's no good unless it's revalidated. And consulates return thousands of K-1 petitions.

Perhaps CSC management thinks its resources can be put to better use elsewhere. Let the petitioner file again with more evidence and a request for an IMBRA Multiple Petition Waiver. USCIS service centers are massive operations with a myriad of ever-expanding legal responsibilities. Service Center management has a right to use its staff resources in whatever way best helps it carry out its various missions. However, the U.S. Department of State objects to CSC's policy of allowing expired petitions to remain expired. It would prefer to have CSC management assign adjudicators to each and every one of the thousands of petitions that consular officers return every year.

In a sense it could be argued that DOS wants to participate in the management of CSC's adjudication of returned K-1 petitions. It doesn't matter how many thousands of hours it would take to [re]adjudicate these returned petitions. It doesn't matter how much money all this would cost the taxpayer. It doesn't matter how speculative, conclusory, equivocal, irrelevant and even factually incorrect these return memorandums often are. What matters is that DOS is miffed that CSC is ignoring its petition return memorandums.

Consulates have taken the position that it will not adjudicate re-filed K-1 petitions that CSC has approved. Rather, it will delay the processing of the visa application until CSC makes a new determination on the old petition, one that demonstrates it has paid attention to the consular officer's return memorandum. Has this policy been approved by the State Department? Seasoned USCIS adjudicators know that consulates send thousands of K-1 petitions back to service centers every year. Hundreds of these petitions do not meet the criteria set forth very specifically in "Matter of Arias". Why should USCIS waste its valuable resources reviewing petitions that should have never been returned in the first place?

DOS will remain free to return hundreds or perhaps thousands of petitions where the officers' conclusions are conclusory, speculative, equivocal, or irrelevant to the bona fides of the petitioned relationships. It can continue to be unaccountable to US Citizen Petitioners. And in those cases, US Citizen Petitioners will have to put their futures on ice in a massive bureaucratic deep freeze. Here is an extreme case of this turf war being played out at the expense of US Citizens. This poor guy has been trying for six years to bring his wife to the U.S. This case is revelatory in more than one way. It illustrates what happens when a US Citizen Petitioner is caught between these two agencies. But it also shows that DHS is the agency that often gets sued for the actions for consular officers who are outside its control. I'm not sure why this gentleman sued DHS. It approved all his petitions. It's DOS that keeps saying "no". But I have not read the pleadings and there might be a good reason not mentioned in the story.

A couple of "A" words came to mind when I read his case. "Abuse" is one. "Accountability" is another. At what point can we say, this particular U.S. Citizen deserves better under the law? At what point do federal officers become accountable for actions taken under color of law? But DOS should be careful here. The case law is clear. Aliens outside the United States may have no rights. But US Citizen Petitioners do have rights. And these rights are actionable. In refusing to adjudicate visa applications, DOS may be ignoring the plain language of the law. Adjudication of [petitioned] visa applications is not a discretionary function. Consulates do not have discretion to indefinitely delay the issuance or refusal of visa applications.

Further, the adjudication of visa petitions is clearly the sole domain of USCIS. And in demanding that USCIS adjudicate petitions in the way it desires, DOS may be violating the letter of the law yet again. Now that one half the nation's K-1 petitions are being processed through CSC, DOS may be creating a class-action size group of US Citizen Petitioners who are desperate enough to seek redress in the courts.

Edited September 6, 2008 by JR2008

[luckytxn 2,264]

I see someone went to Mark Ellis' website and read that. After reading it myself it became clear that we have many Ego's clashing in a bureaucratic atmosphere that is ignoring the U.S Citizen. These Ego's are playing God at our expense. Why should they care about us when it is not them that it is affecting?

Also I see a hint of a class action suit mentioned. This may sound good but we know that lawyers are in this for money. They do need to make a living after all and I begrudge no one this. Most people here or anywhere can afford the lawyers that it would take to pull this off.

Edited September 6, 2008 by luckytxn

[chris39 0]

The more and more I interact with UCIS in general, I believe there has to be some type of accountability. In the private sector, they would not survive. They forget that it is our tax dollars that is paying their salaries. A lot of abuse of power and I'm not surprized at all that they are playing "power games" with each other at our expense.

[luckytxn 2,264]

The more and more I interact with UCIS in general, I believe there has to be some type of accountability. In the private sector, they would not survive. They forget that it is our tax dollars that is paying their salaries. A lot of abuse of power and I'm not surprized at all that they are playing "power games" with each other at our expense.

No. What you are seeing is called a Bureaucracy. Every country has this and some are huge and unwieldly like the U.S. because we are so large in population and wealth. (Among other things) Almost everyone here has very little interaction with our bureaucracy on a national level. Well now you and others here have come face to face with it. It has always been like this and always will. The movies have portrayed this and books but it was so remote for us all that we saw it as distant.

Usually the only bureaucracy we ever face is at the local level or maybe a statewide. It is still a hassle but being smaller and more local it is not so unwieldly and may be bearable. I have had this experience before many years ago when I married overseas and when I was a clerk in the Army. I have battled this ####### before in the private sector.

It is one of the main arguments against the government getting into our lives more deeply via the Socialized medicine and other socialized programs. We understand that there is a problem and want it addressed but the medical part of the U.S. economy is 1/5th and to even think of the bureacracy getting their greedy hands on it and installing what would be the worlds largest bureaucracy is mind numbing. Most that come here to the states have had knowledge in their homelands of socialized medicine but those countries are much smaller and somewhat managable and less wealthy.

Now knowing how much hassle it is to get something done that should be so simple as a visa for a loved one and the bureaucracy encountered does anyone want the government to get into our lives more?

[chris39 0]

The more and more I interact with UCIS in general, I believe there has to be some type of accountability. In the private sector, they would not survive. They forget that it is our tax dollars that is paying their salaries. A lot of abuse of power and I'm not surprized at all that they are playing "power games" with each other at our expense.

No. What you are seeing is called a Bureaucracy. Every country has this and some are huge and unwieldly like the U.S. because we are so large in population and wealth. (Among other things) Almost everyone here has very little interaction with our bureaucracy on a national level. Well now you and others here have come face to face with it. It has always been like this and always will. The movies have portrayed this and books but it was so remote for us all that we saw it as distant.

Usually the only bureaucracy we ever face is at the local level or maybe a statewide. It is still a hassle but being smaller and more local it is not so unwieldly and may be bearable. I have had this experience before many years ago when I married overseas and when I was a clerk in the Army. I have battled this ####### before in the private sector.

It is one of the main arguments against the government getting into our lives more deeply via the Socialized medicine and other socialized programs. We understand that there is a problem and want it addressed but the medical part of the U.S. economy is 1/5th and to even think of the bureacracy getting their greedy hands on it and installing what would be the worlds largest bureaucracy is mind numbing. Most that come here to the states have had knowledge in their homelands of socialized medicine but those countries are much smaller and somewhat managable and less wealthy.

Now knowing how much hassle it is to get something done that should be so simple as a visa for a loved one and the bureaucracy encountered does anyone want the government to get into our lives more?

I agree!!!!!!!!!!!!!!!!!!! Government needs to stay out.