Immigrants sue government to get green cards fasterImmigration: Overload of requests for employment visas after 9/11 causes massive delays
December 18, 2006
Source: Daily Oklahoman
By Judy Gibbs Robinson
Staff Writer
Desperation drove Chao Li to sue the U.S. government this fall.
For more than two years, the Chinese doctor had been waiting to become a legal permanent resident of the United States. Until he got his green card, he could not apply for grants -- vital to his career as a researcher at the University of Oklahoma Health Sciences Center. Changing jobs was out of the question under terms of his employment-based visa.
Every time Li called to check on the delay, U.S. Citizenship and Immigration Services officials said they were waiting for an FBI name check.
"I was so desperate. I had no idea what to do," Li said.
The Internet provided the answer. On Web sites run by and for immigrants, Li learned how to file a lawsuit that might expedite his application. He downloaded a form, and in the space above the word "defendant," he carefully printed "Michael Chertoff," secretary of the U.S. Department of Homeland Security.
Li filed the suit Sept. 29. A month later, he had his green card.
Faced with long waits caused by a backlog of applications, more and more immigrants are following Li's path, using the courts to nudge U.S. Citizenship and Immigration Services, a unit of Homeland Security, to process stalled requests. In U.S. District Court for the Western District of Oklahoma alone, at least 30 cases against Chertoff were filed in 2006, including Li's, court records show.
Such lawsuits seek what is called a "writ of mandamus" -- a court order requiring a government agency or official to perform a duty, in this case, to process an application. The order does not require a favorable outcome for the immigrant -- only that he gets an answer one way or the other.
T. Douglas Stump, a national board member for the American Immigration Lawyers Association, has filed 18 such cases in Oklahoma, mostly for highly skilled medical researchers.
"Every case to date has resulted in action: Either they've been granted green cards or naturalization," Stump said.
Background checks
U.S. Citizenship and Immigration Services are blamed for delays in processing immigration applications. But local immigration lawyers say the fault usually is with the FBI, which conducts security checks on every would-be immigrant to weed out criminals, drug traffickers and people with links to terrorism.
The requirement, introduced after Sept. 11, 2001, nearly doubled the number of names immigration officials ted annually and created a huge backlog at the FBI.
"The sudden need for data overloaded the system years ago. We're still dealing with the result," Stump said.
In May, immigration officials reported 235,802 FBI name checks pending. Sixty-five percent of those had been pending for 90 days or more, and 35 percent had been pending for a year or more, the report said.
The initial check takes about two weeks, and 80 percent of cases are cleared in that time, according to immigration service documents. Most others are resolved within six months. But in less than 1 percent of cases, it takes the agency six months or longer to determine whether the immigration applicant is a threat to the country, the agency says.
"Unfortunately, if you're in that 1 percent ... odds are it could be two to three years," Stump said.
The wait is more than an inconvenience for foreign medical researchers such as Li. Researchers often depend on grants from the National Science Foundation and other entities that award money only to citizens or legal permanent residents.
"It's not like these foreign nationals are just eager-beaver to go to court. They have a compelling need to seek the relief," Stump said.
'There is a shortage'
While the United States must take care deciding who gets into the country, delays approving top-flight researchers could be against the country's best interests, said Stephen M. Prescott, president of the Oklahoma Medical Research Foundation, where 44 percent of 143 top-level researchers are here on visas.
Could the foundation get by without foreign nationals?
"Absolutely not," Prescott said. "The fact is our education system has not produced a sufficient amount of laboratory technicians, scientists and engineers."
While foreign-born individuals make up about 8 percent of the U.S. population, they make up 23 percent of the doctorate-level scientists and engineers, according to a National Science Foundation report.
The OU Health Sciences Center, where Li works, could not provide exact numbers but has "several dozen" foreign-born researchers and doctors, said Dewayne Andrews, vice president for health affairs and executive dean of the OU College of Medicine.
Andrews described the foreign-born researchers as dedicated and hard-working scientists whose presence enhances OU's scientific work while adding an international flavor to the campus.
"Can we function without them? Yes. But there is a shortage of individuals in this country to work in certain areas," Andrews said.
So far, the United States has enough prestige to attract foreign researchers despite the hassles some face getting visas. But as other countries roll out the welcome mat, that could change, Prescott said.
"If we don't get them someone else will," he said.
That 'unlucky guy'
Li does not know why the FBI name check stalled his application, but the delay left him frustrated and depressed.
"I needed this green card. I wanted to apply grant. I want to have better job. A visa have so many restrictions," said Li, who speaks English as a second language.
He came to Oklahoma on a student dependent visa in 2000. The Oklahoma Medical Research Foundation sponsored him for a temporary worker's visa that allowed him to stay for up to six years.
In 2003, Li moved from the foundation to the OU Health Sciences Center, which agreed to sponsor him for legal permanent residency.
When that application was approved in April 2004, Li filed another form to get his green card and began to settle down. Twenty-nine months elapsed before Li turned to the courts.Now that he has his green card, Li said he understands the need for background checks.
"I understand. I just don't want to be that unlucky guy," Li said.