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Cite as “Posted on AILA
InfoNet, Doc. No. 01090734 (November 15, 2003 ).”
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AILA/CSC QUARTERLY MEETING
SEPTEMBER 10, 2001
AGENDA
GENERAL UPDATES
1. Mailroom. How long does the CSC anticipate it will take the Contractor to reduce
frontlogs in the mailroom? Until the frontlogs are eliminated, how frequently will the CSC
be issuing a receipt processing time report? Is there a target date for completion of the
frontlog reduction and are any specific types of filings being given priority?
The Contractor is aggressively working to reduce the frontlog. The target date for
completion of the frontlog reduction effort is the end of September.
The receipt processing time report is distributed to AILA biweekly along with the JIT
Report. We will continue to provide this report until the frontlog is eliminated.
The priorities for frontlog processing are TPS, I-129's, I-881's, N400's, I-485's,
I-130's, I-90's and I-589's. All other form types follow those priorities.
Some members report that filings, which have been sitting in the mailroom for months, are
being rejected on the basis that the checks have expired. How long are checks valid? If a
filing is improperly rejected on the basis of the check's age, what procedure should be
followed to make sure that the initial filing date is honored?
Checks are normally valid for one year. In some instances, checks and money orders may
have a written expiration date on the instrument such as, "not valid after 60 days".
The CSC has implemented the following procedures to address this problem
The applicant, petitioner or attorney can resubmit the original rejection notice, the
original application/petition and the flyer received from the CSC along with a letter
explaining that the cause of the "stale dated" check was due to the delay
in processing the frontlog.
The application/petition should be mailed to the CSC with a red dot on the outside of the
envelope. Upon receipt at the CSC, the application/petition, along with the supporting
documentation, will be forwarded to an officer to determine whether or not the
application/petition will be adjudicated based on the original receipt date. The priority
date will be determined at the time of adjudication.
2. Incorrect Filings. How does the CSC handle filings that are sent to the CSC but
that should have been sent to another Service Center? What is the best way to notify the
CSC of such an error and to facilitate the transfer of the case to the Service Center with
correct jurisdiction over the filing?
Once the application/petition has been identified in the mailroom as "out of our
jurisdiction", the application/petition is rejected back to the
applicant/petitioner with a letter that gives them the correct address for the Service
Center where they need to apply. There are exceptions to this basic rule, those that
qualify under centralized filing, Premium Processing and a few other
applications/petitions are either relocated or processed at the CSC. I-90 Renewals, TPS,
Premium Processing and I-130s are examples of applications/petitions that the INS will
forward to the appropriate Service Center. If an I-140 was approved at the CSC we would
also process the I-485 at the CSC.
3. Notification of Change of Address. On occasion, attorneys change addresses while
petitions/applications, reflecting the old address, are still pending with the CSC. In the
past, the CSC has asked us to mail a separate G-28 for each pending case with a copy of
the receipt notice and a Correspondence Cover Sheet. However, given the frontlogs in the
mailroom, would it be possible for the attorney to fax a list of the
petitions/applications impacted by the change with receipt numbers to the ACD for the
appropriate Division?
The AILA representative should mail the attorney's change of address information to the
Ombudsman. Please mark the envelope- "DO NOT OPEN IN THE MAILROOM- TO BE OPENED BY
ADDRESSEE ONLY".
Once the frontlog is eliminated, we will revert back to the normal procedures of sending
attorney address changes through the mailroom.
4. Correction of Approval Notices. In the past, the Service Center Guidelines
regarding requests for corrections on I-797s have worked well. However, recently the CSC
does not appear to be responding to such requests. Members report sending multiple faxes
requesting corrections only to find that the files have been sent to storage before the
new I-797s have been generated. Is the CSC aware of this problem, and can a better system
be suggested?
Yes, we are aware of this problem. Unfortunately, due to space issues, we no longer have
the latitude to continue to store files locally. A decision was made to forward completed
case files to the National Records Center 21 vice 90 days after adjudication.
We can only suggest that attorneys review approval notices promptly and notify the
appropriate Division of any error upon receipt of the approval notice.
5. CSC Guidelines. What is the most current version of the CSC guidelines? Has an
electronic version of the Guidelines been made available? If so, where? Finally, please
provide instructions on how to obtain a hardcopy of the CSC Guidelines.
The most current version of the CSC Guidelines is dated 10/30/00. An electronic version of
the CSC Guidelines was forwarded to the 2000 -2001 AILA Chair last November. Hard copies
can be obtained by contacting the Forms Center West at (800) 870-3676 and
requesting form WR-754.
6. Receipt Notices. What can be done when no receipt notice is issued for petitions
or applications filed at the CSC? Today, receipt notices are used to establish work
authorization, for international travel, to document legal status, and to establish
eligibility for visa categories. Is there any way the software can be modified to issue
duplicate receipt notices?
As a result of the frontlog, we are experiencing delays in mailing out receipt notices. We
are providing the "Notice to the Public Regarding Receipt Notices" notice
which reflects the dates that the mailroom is currently processing. If your
application/petition was mailed at least fourteen days prior to the date they are
processing, you should call the Duty Officer at (949) 389-3007 to inquire about the
status of the receipt notice.
Unfortunately, we do not have the ability to issue duplicate receipt notices.
7. Correction of Receipt Information. On occasion, the CSC issues receipt notices
with the wrong receipt date. Such mistakes need to be corrected to ensure the individual's
eligibility for certain benefits. If the attorney has proof of the date the CSC received
the filing, what is the best way to make sure that the receipt date is corrected?
For those errors relating to the notice date, the data entry module of CLAIMS will
not allow correction, therefore, any fax relating to notice dates will be interfiled into
the file folder for the officer to review and correct during adjudication. The decision
notice should show the corrected date.
It should be noted that a duplicate (or corrected) receipt notice cannot be
generated from CLAIMS.
8. RFE's. Please explain the CSC's policy regarding Requests for Evidence (RFE.)
Members would like to know the following information:
1. How long does an officer have to either complete a case or issue an RFE?
Under normal circumstance, officers are expected to complete a case within 7-10 working
days of delivery from the JIT shelf.
2. From the time that an adjudicator has drafted the RFE, how long will it take to
be sent out?
This timeframe varies based on petition type and workload. In some instances, it can take
7- 14 days.
3. From the time that the response has been sent in, how long will it take a) to
match the response to the file, and b) for a decision to be made on the case?
As a result of the frontlog, there was a backlog of RFE's within the CSC. The Contractor
focused resources in this area and is now current in routing the RFEs to the file.
Under normal circumstances there is a 24-hour turn around time from receipt of the
evidence to routing it to the file. Once the officer receives the file/response, normal
adjudicative processing time is 3-4 days.
9. Notices of Intent to Deny. Members note an increase in the number of Notices of
Intent to Deny (NOID) being issued instead of RFE's. Please reiterate the CSC's
policy regarding when an RFE should be issued versus when a NOID should be issued.
A Notice of Intent to Deny is issued when there is evidence of ineligibility or derogatory
information of which the applicant or petitioner may not be aware. RFEs are sent when
certain issues may be resolved with the submission of additional documents.
10. I-551s. What is the current processing time for I-551s? Inquiries sent on Form
G-731 to P.O. Box 10190 usually go unanswered. Please confirm the best way to inquire on
the status of pending I-551s? Further, if an individual moves before the receipt of his or
her I-551, what is the best way to notify the CSC?
The best way to inquire on the status on an I-551 is by fax to (949) 389-3485. If an
individual moves before the receiving his or her I-551, he/she should fax the new address
information to the same fax number.
Please note that I-551s for approved I-485s are taking approximately one year to process.
I-551s from approved I-90s should be completed approximately 90 days from receipt date.
11. Staffing Levels. Have there been any increases in staffing within the last 4
months and are there any anticipated increases next fiscal year?
The CSC has received several allocations of additional staffing during FY 2001. The most
recent allocations were specifically designated for TPS, LIFE and backlog reduction. We
have made selections for the total number of new positions and new hires are beginning to
enter on duty. We do not know at this time what positions may be allocated during the next
fiscal year.
12. Expedited Processing. Please confirm that the CSC will continue its policy of
expeditious processing of petitions and applications, not designated for premium
processing, based on the following criteria: severe financial loss to a company or
individual, extreme emergent situation, humanitarian situation, Department of Defense or
national interest situation, or INS error. Please confirm the best way to request the
expedited processing of a case.
Yes, the CSC will continue to process requests for expedite processing based on the
criteria listed above. To request that an application/petition be expedited, mark the
envelope with a red dot and use the street mailing address. An explanation of how the
application/petition meets the criteria should accompany the request.
DIVISION I (I-526, I-829, I-360, I-140, I-824, I-131, I-539, I-102)
13. JIT Report I-140 Breakdown. Would it be possible to include an explanation of
the I-140 breakdown on the JIT Report? Also, would you please provide an explanation of
the breakdown again?
We are trying to limit the JIT Report to one page so it would be difficult at add that
information without expanding it to two pages. The breakdown is as follows:
A = E11 An alien of extraordinary ability
B = E12 An outstanding professor or researcher
C = E13 A multinational executive or manager
D = E21 A member of the professions holding an advanced degree
Or an alien of exceptional ability
E = E31, E32 A skilled worker (requiring at least two years of specialized training or
experience) or professional
G = EW3 Any other worker (requiring less than two years training or experience)
14. I-140 Amendments. Members continue to express confusion regarding the current
INS policy regarding when an amended I-140 petition is and is not needed. Would the CSC be
able to provide us with answers to the following questions?
It should be noted that the HQ memo dated December 10, 1993 is still in effect except for
those instances when the Form I-485 has been pending for more than 180 days.
a) If a petitioner changes its name, but keeps the same Tax ID number, is an
amended I-140 petition needed in order to:
1. File an I-485 application; or
Yes, an amended I-140 is required.
2. Have an I-485 adjudicated if it has been pending for less than 180 days.
Yes, an amended I-140 is required.
b) If because of re-structuring, Company A merges with Company B, keeping Company
A's name and using company B's Tax ID, are amended I-140s needed for either the employees
of company A or company B in order to:
1. File an I-485 application; or
Yes, an amended I-140 is required for both companies .
2. Have an I-485 adjudicated if it has been pending for less than 180 days.
Yes, an amended I-140 is required for both companies.
c) As the result of an acquisition, Company A merges with Company B, changing names
and Tax ID number. Company B succeeds to all the interests and liabilities of Company A as
they relate to alien labor certification applications and I-140 petitions. Are amended
I-140 petitions for the former Company A employees needed to order to:
1. File an I-485 application; or
Yes, an amended I-140 is required.
2. Have an I-485 adjudicated if it has been pending for less than 180 days.
Yes, an amended I-140 is required.
15. Overseas Investigations. What is the cause for the overseas investigation of an
I-140 petition? When a decision is made to conduct an overseas investigation, will the CSC
inform the attorney of the reason for the investigation? If credibility of documentation
is an issue, can the attorney have the U.S. Consulate authenticate the relevant documents
and resubmit them to the CSC for continued processing? What is the normal processing time
for an overseas investigation of an I-140, and what inquiry procedures should be used to
follow up on the case?
We are unable to discuss the reasons for conducting an overseas investigation. An attorney
would not be notified of such an investigation.
Generally, the only documents that the U.S. Consulate would authenticate are educational
documents.
The normal processing time for an overseas investigation of an I-140 is 6-12 months. You
should follow the normal inquiry process to follow-up on a case.
16. Bachelor's Degree or Equivalent. The official minutes of the May 2001 meeting
included a section dealing with the acknowledged obligation of the CSC to consider the
beneficiary's eligibility under both the "Professional" and "Skilled
Worker" categories for EB 3 classification. Members continue to see denials of
I-140 petitions where the job requirements on the underlying labor certification are
either a Bachelor's degree "or equivalent," based on a combination of
education and or work experience, and the beneficiary has a combination of education and
work experience that is equivalent to a Bachelor's degree. Per the CSC's instruction in
May, members have faxed such denials to the attention of ACD Mary Agnelly to be only
informed that there was no INS error. Please explain the CSC position on such cases.
It is our interpretation that if the labor certification says "Bachelor's degree
or equivalent", equivalent means a foreign equivalent of a U.S. baccalaureate
degree, not a combination of education and experience. There is no provision to substitute
experience for education on a labor certification. However, in those instances where the
labor certification contains specific alternative requirements, the beneficiary may be
considered for E31 immigrant status.
17. Prevailing Wage. Please clarify the INS position on when the "prevailing
wage" must be paid to the beneficiary named on an I-140 petition. Must it be paid
a) at the time of filing the I-140 b) at the time of filing the I-485, or c) at the time
the I-485 is approved?
Ability to pay the prevailing wage applies to the filing date of an I-140 petition and
continues through the adjudication of the adjustment application (Form I-485).
However, the alien is also required to meet the public charge criterion.
18. Processing Delays for Advance Paroles. Are advance parole applications
submitted with I-485s being delayed because of the mailroom frontlog delays?
Yes, there is a delay due to the frontlog. As of August 20, 2001, the mailroom was
assembling I-131's dated July 27, 2001. Once received in the Division, the I-131s are
adjudicated within 7 days.
19. RFE's on Advance Paroles. We are receiving RFE's for I-131 for individuals with
dependent I-485 applications requesting proof of relationship to the principle applicant,
copies of passports and I-94 cards. What documents does the CSC currently require in
support of principle and derivative I-131 applications?
Passports and Form I-94's are required to determine unlawful presence.
In some instances, passports, birth certificates, marriage certificates and Form I-94's
may also be needed to establish proof of relationship to the principal alien.
20. Advance Paroles Filed Concurrently with I-485s. The CSC is frequently sending
RFE's on I-131 applications filed concurrently with I-485 applications. These RFE's
request proof that an I-485 has been filed. Should we be writing, "Filed
concurrently with I-485" on top of all such filed I-131s?
Proof that an I-485 was filed is required if the officer is unable to locate the I-485 in
our computer systems. It would be helpful if "Filed concurrently with I-485"
is written on the top of the I-131. This may assist the contractor in keeping the files
together.
DIVISION II (I-129, I-129F)
21. Premium Processing -- Method of Communication. What is the current CSC policy
regarding the method of communication used for premium processing cases? Why are faxes
sent when the attorney has requested e-mail notification on Form I-907?
A pilot program was established at the Vermont Service Center that provides for E-mail
notification. This pilot has proven quite successful, and we are now awaiting approval for
more widespread use of the software. In the meantime, we are utilizing fax notification
that is the standard method utilized by the other Service Centers.
22. Premium Processing Inquiry Procedure. Please explain the inquiry process
available for premium processing cases. What methods can an attorney use to follow up on a
case that is past the 15-day processing time, has an error in the approval notice, etc.?
Inquiries can be made through the Premium Processing e-mail system, dedicated fax inquiry
line, or telephonically. Telephones are answered Monday through Friday from 9:00 a.m. to
3:30 p.m. PST. Please note that you will be required to enter the Premium Process WAC
number in order to proceed with telephonic communication. The dedicated fax line for
Premium Processing inquires and responses are (949) 389-3460. Our e-mail address is:
CSC. Premium.Processing @USDOJ.GOV.
All of these methods are available for your use on Premium Processing cases.
It is important to point out that responses to Requests for Evidence or Intents to Deny
must follow the instructions provided on the coversheet. It is imperative that fax
responses be forwarded to the annotated Premium Processing fax number. Furthermore,
Premium Processing mail should be addressed to the appropriate post office box or street
address. Failure to comply could impact processing times and might effect a possible
refund request.
If an inquiry is sent via regular mail, please annotate in bold letters that it is a
premium processing inquiry and address it to the appropriate post office box or street
address. It is recommended that all forms of communication be visibly marked as Premium
Processing to assure proper handling. Generally all Premium Processing inquiries are
answered within fifteen days.
23. Premium Processing - Refund of Fee. In the past, you have explained that in
order to refund a filing fee, the CSC must make a request to the Debt Management Center in
Burlington, Vermont, and that the process takes approximately 8 weeks. Is this the
procedure the CSC will be following if case is not processed within the 15-day premium
processing guarantee? Will the attorney need to request that the fee be refunded or will
the CSC request the refund automatically?
Currently we are initiating the refunds at the California Service Center. Refunds have
primarily been based upon filings of the I-907 subsequent to adjudication. The Service has
initiated these types of refunds. In the event a petitioner believes they are due a
refund, they may go through the inquiry process. Please state the reasons why a refund is
believed due.
24. Premium Processing - RFE's. Members note an increase in RFE's, especially on L
and O petitions, when premium processing is requested. Do the CSC's records reflect an
increase in RFE's issued for premium processing cases, and if so, can you please explain
the trend?
A review of the statistical records indicates that the RFE rate within Premium Processing
has been consistent with the RFE rate within Division II. The RFE rate is approximately
20% for Ls and Os. We have also noted a trend since the introduction of the H-1Bs for
upgrades on cases that were previously RFEd. This will increase overall RFE rates since
the RFE is again issued under Premium Processing. Officers have also expressed their
opinion that some Premium Processing cases appear to be less prepared and documented
requiring RFEs.
25. LCA Pilot Program. Although the LCA pilot program has ended, there are still a
significant number of H-1B petitions pending at the CSC that were filed without certified
LCAs. Many members made the decision to file H-1B cases without the certified LCA because
they thought a fast, fax back turn around would be available. Would the CSC be willing to
continue its policy of faxing RFE's requesting certified LCAs for H-1B petitions filed
before the program ended on July 27, 2001?
The LCA pilot program was initiated as a thirty-day program designed to address the DOL
backlog issue. This thirty-day pilot continued beyond one hundred twenty days. In order to
address the resource issues created by inclusion of H-1bs into Premium Processing, it was
decided that this was a program that could no longer be supported. This was primarily due
to the huge resource drain maintenance of this program required. It is unfortunate if
members presumed this temporary program would continue beyond this timeframe. However,
members have Premium Processing available as a method for expeditious handling of their
RFEs for an LCA.
26. H-1B Petitions Requesting Future Start Dates. The regulations allow an H-1B to
be filed 6 months in advance of the requested start date. Members note that requests for
future start dates are often overlooked, and that approval notices are frequently issued
with start dates that correspond to the notice date. Can the CSC suggest a method of
highlighting the fact that the requested start date is in the future, not ASAP?
This issue has been raised and addressed in training. We would ask that members literally
highlight this fact on the I-129 and in accompanying documentation.
27. H-1B Portability. Please confirm the CSC's position on the following scenario:
A petitioner files an H-1B change of employer petition on January 1, 2001 requesting a
January 5, 2001 start date. Under the H-1B portability law, the beneficiary begins
employment with the petitioner on January 5, 2001. Later, the petitioner receives an H-1B
approval notice with an effective date of July 5, 2001. How does the CSC view the period
between January 5, and July 5 when the H-1B was approved? Will the petitioner need to
obtain a corrected approval notice?
We are still awaiting Headquarters' guidance beyond the initial Memo dated June 19, 2001
regarding AC-21 issues. However, based upon our understanding of portability, a corrected
approval notice would not be required. As long as the case was timely filed and there was
not a break in status, the later approval date should not have a negative impact on the
beneficiary.
28. RFE's on L-1B Petitions. Members note an increase in the number of RFE's issued
on L-1B "specialized knowledge" petitions. Do the CSC's records confirm
this trend, and if so is there a reason for this increase?
CSC records indicate that there has been a marked increase in filing of L-1Bs. This
dramatic increase began just prior to the time of the H-1B fee increase. Therefore, the
RFE rate might appear to have increased; however the percentage remains in line with
overall RFE rates. It must be noted that we have also noticed a trend where petitioners
who have historically filed for H-1Bs are now asking for an increased number of
L-1Bs.
29. RFE's on O-1 Petitions. Members have reported a significant number of standard
RFE's and even some denials for O-1 petitions from CSC on three issues:
A) Can the CSC please provide clarification on the issue of whether O-1 employment
is required to be "temporary"? Recently, the CSC has been issuing RFE's
containing the following language:
Position not Temporary: A beneficiary who has been offered a position for an
indefinite period with no specified termination date has not been offered a temporary
position and does not qualify for nonimmigrant classification. Provide evidence that the
beneficiary has a specified beginning and ending date of employment.
Members report that they are receiving the above-worded RFE's not only for entertainers,
but also for scientists, researchers, professors, architects and designers.
INA Section 101(a)(15)(o)(i) and the INS regulations at 8 CFR Section 214.2(o)(1)(1)(ii)
define an O-1 as "an alien who has extraordinary ability in the sciences, arts,
education, business or athletics which has been demonstrated by sustained national or
international acclaim and who is coming temporarily to the United States to continue work
in the area of extraordinary ability." There is no explicit requirement that the
employment or event be inherently temporary, only that the alien's stay be
temporary.
Thus, the CSC's assertion in recent months that employment without an end date is not a
temporary assignment is puzzling in two respects: 1) there is no legal requirement
that the assignment be inherently temporary; and 2) there is an end date, specified
on Part 5 of the Form I-129. Based on the above, we respectfully ask the Service to revert
to its former adjudication policies by recognizing that there is no requirement that the
position or event be inherently temporary or finite, only that the alien be temporarily
performing the tasks.
The issue is not so much whether or not the employment is temporary but rather that there
is an articulated event. The law and supporting regulations do not define the duration of
stay of the O classification vis-à-vis employment but rather by an event. Pursuant to 8
C.F.R. (o)(2)(ii)(C) the regulations state that there must be an explanation of the nature
of the events or activities, the beginning and end dates of the events or activities, and
a copy of any itinerary for the events or activities.
This section clearly outlines the requirement that the event or activity have a beginning
or end date. To merely look to a portion of the Form I-129 that requests validity periods
while ignoring the section of the form that requires an articulation of the actual event
is an inappropriate standard that seems to ignore the requirement to articulate an event.
The specific language cited above does lend to some confusion because the beginning and
end date are not really attached to the employment but rather to the event. This portion
of the RFE was modified prior to receipt of this inquiry.
In addition, CSC has sought guidance from Headquarters both from Service Center Operations
and the Office of Programs on this issue. Although we have not received formal written
guidance, the point of view expressed is in those areas of employment where an event might
not be as easily defined given the nature of the activities, the Service would take a more
liberal approach in defining the terms of event. However, event is still recognized as an
element in the classification and as such a request for articulation of what constitutes
the event is appropriate.
In order to facilitate us in proper adjudication, we would ask that members explain how
the related activities make up an event or support the event. In the case of professors it
can be established through contractual terms identifying the semester or school year. The
researcher could identify his event under the terms of the research project or terms of
the grant. The business executive could define event through the project she is heading
such as a roll out of a product, expansion. In each example the concept of event remains
intact while providing flexibility based on the field of endeavor.
Please note that although the RFE might appear to be requesting evidence that might most
easily be identified or associated with artists or performers, these evidentiary
requirements can be met with other professions. It is an articulation of the nature of the
event or activity that suffices. It must be noted that the law maintains the need for an
event regardless of the field of expertise for the alien.
B) Members also report that they are receiving numerous RFE's on the issue of
"event and itinerary". Can the CSC please clarify its position
regarding this issue? The RFE's state:
Event and Itinerary: Provide an explanation of the nature of the events or activities, the
beginning and ending dates for the events or activities, and a copy of any itinerary for
the events or activities and a written advisory opinion(s) from the appropriate consulting
entity or entities. Submit a complete itinerary for all events. List the exact periods for
each service. In addition, provide the names and addresses of the locations/employers.
The INS Regulations at 8CFR Section 214.2(o)(3)(ii) define an event as:
an activity such as, but not limited to, a scientific project, conference, convention,
lecture series, tour, exhibit, business project, academic year, or engagement. Such
activity may include short vacations, promotional appearances, and stopovers which are
incidental and/or related to the event. A group of related activities may also be
considered to be an event.
There is no requirement that the "event" be special, additional to or
outside the auspices of the petitioner's normal business, scientific, academic or artistic
activities. One member reports that a CSC officer used an example - stating that if an
architect had several projects, he would have to apply for an O-1 for EACH project. The
CSC's RFE's request "the beginning and ending dates for the events or activities"
require an unrealistically detailed itinerary. Further such requirements cannot be met in
situations where projects evolve over time, as is commonly seen in the fields of science,
business, academics and the arts. Please provide clarification on this issue.
This subsection of the question is answered in part in the previous answer. It again must
be reiterated that by regulation the event does require beginning and end dates. The
concept of activities is also attached to these activities being associated with and in
support of the event. As noted in your hypothetical, if an architect is working on a
project that is the event, then it is feasible that several buildings could comprise that
project. However, the event as such should be defined in the project. If the architect was
to commence a new project that is not associated with this previous project, then the
Service's position would be that there is in fact a new event.
In the case of those areas in the sciences, business, academia or the arts, it is not
unrealistic to expect a definition of event in the petition. It is not unreasonable to
require the petitioner to define the terms under which the alien is being sought for
employment. Clearly these terms would be defined by contract or oral agreement that would
identify what scientific project, length of academic stay, business endeavor and artistic
engagement the alien is coming in to perform.
Without concrete examples as to how this is being applied, it is difficult to provide an
answer. It is not clear why the requirement of a beginning and end date would create an
undue burden in providing an itinerary. Clearly there are cases where an itinerary would
not be appropriate. The RFE as such is not demanding an itinerary if it is not appropriate
or where a contract would suffice. In some instances the itinerary would be defined as the
academic year, the semester, the performance season or concert halls where the alien would
be perform, the business enterprise, the product roll out, the lecture series and venues
of lectures.
C) Members also report that they are receiving RFE's with the following
language:
Contracts: Provide a copy of any written contracts between
the petitioner and the beneficiary, or if there is no written contract,
a summary of terms of the oral agreement under which the alien
will be employed. Provide a contractual agreement between the
employer and the beneficiary for each event.
Can the CSC please also clarify its position on whether contracts are required for "each"
event? For example, would a separate agreement be required for each venue where an artist
will be performing? This is not required by the regulations, and we respectfully urge the
CSC not to change its long-standing policy by adopting the view that an agreement for each
event.
It is not the CSC standard to require separate contracts to outline each "event"
if as the example illustrates, the event is for a series of concerts at various venues as
long as the broader concept of the event is defined as a concert series and supported by
contract. However, the CSC has used, and continues to use, the statutory language that
defines competition, event, or performance in the broader term wherein the event can be,
" an activity such as an athletic competition, athletic season, tournament, tour,
exhibit, project, entertainment event, or engagement" (56 Fed. Reg. 31556 (July
11, 1991) CSC recognizes that by adhering to this statutory definition unnecessary and
repetitious extension requests can be avoided. Therefore, a request for a contract is
appropriate and supported under Regulations as part of the evidentiary requirements for
the O classification and will be requested. The request can be met by incorporating these
"sub" events into the terms of the contract or oral agreement.
In some instances we have seen incomplete contracts and itineraries that do not identify
dates, venues and other essential elements to support the petition. It is unclear in these
instances what the alien will be doing or how the requested period of stay is
substantiated. In these cases, an RFE generally will be issued to seek clarification on
these points.
DIVISION III (I-130, I-751, I-817, I-821 TPS, I-765, I-824)
30. TPS. The regulations are clear that when requesting TPS or an extension of TPS,
one must submit the I-765 application, but one does not need to submit the $100 filing fee
if an EAD is not needed. With consistency, these applications are rejected on the ground
that the $100 filing fee was not included with the filing. Can the CSC please educate the
Contractor regarding this issue?
The CSC has been working with the Contractor to alleviate any confusion regarding the
acceptance of I-765's with I-821's. The CSC has observed a good number of I-765's that are
marked as "Initial" or " Renewal", but are missing the
language "I am not requesting an EAD." If this language is missing, the
Contractor must assume that the applicant is applying for an EAD and simply forgot to
include the fee; which would explain some of the rejects.
If an EAD is not needed, the applicant should make a note "No EAD requested, no
fee" on top of the form I-821. This would assist the Contractor in receipting the
applications.
31. I-765 Signature Card. When filing an I-765 at the CSC, is the applicant
required to submit a signed I-765 signature card with the fingerprint on it?
The I-765 application instructions only require that an I-765 signature card be signed
within the blue box and filed with an I-765. The CSC will not reject an I-765 application
for a missing signature card or for a signature card missing a fingerprint.
32. Required I-765 Supporting Documents. Please confirm which supporting documents,
for both principal and derivative applicants must be included with the I-765. Members note
that they are receiving RFE's requesting not only the copy of the I-140, I-360 or I-526,
but also copies of driver's licenses, passports, I-94 cards, and proof of relationship for
derivative applicants.
Required documents include the following:
I-765 (c)(9):
Copy of the approval notices of the I-140, or I-360, or I-526
Certified copy of registered marriage (or birth) certificate to prove the
relationship
Copy of the receipt notice of the I-485 (if filed concurrently, see #33)
33. I-765s Filed Concurrently with I-485s. Some members report that they have
received RFE's for I-765s filed concurrently with an I-485, requesting proof that an I-485
has been filed. Should members note on such I-765s, "Filed Concurrently with Form
I-485?"
It would be helpful to note on the I-765 "Filed concurrently with form I-485".
34. Notice to Conditional Permanent Residents. As the CSC is able to generate
letters to Conditional Permanent Residents at their last known address after the 2-year
deadline for filing the I-751 has passed, why can't a letter be generated before the
deadline has passed?
This would require a change in the software. The CSC does not have control over such
changes.
DIVISION IV (I-485, N-400, I-131)
35. Order of I-485 Filings. Although you have done so in the past, please provide
us with the preferred order for filing an I-485 and supporting documents. Can you provide
us with a list of the Do's and Don'ts for I-485 filings?
The I-485 Record of Proceeding Order is as follows:
1. Acceptable G-28
2. I-485 application
3. I-485 Supplement A
4. I-864
5. G-325
6. Lawful Entry Evidence
7. Supporting Documents
8. I-693
9. I-797 for I-140
Do:
· Provide a separate check for each application.
· Submit a separate G-28 for each separate application riding with the I-485.
· On the G-28- please clearly indicate the physical address of the alien/applicant.
36. Cover Sheet for I-485 Filings. What version and color cover sheet should be
used with I-485 filings?
Form I-485 (REV. 02/07/00) N - should be used for I-485 filings.
37. Consular Processing and I-485 Application. Please clarify whether or not an
applicant who filed an AOS application can be a derivative beneficiary of a spouse's
consular processing application without having to withdraw his/her I-485 application.
Yes, a dependent can adjust status, even though the principle is consular processed. The
principle must make entry with the immigrant visa prior to the dependent being approved
for adjustment.
38. RFE from Division IV Regarding I-140 Issues. Please explain in what
circumstances an I-140 petition would be readjudicated in relation to the adjudication of
a pending I-485 application. Some recent I-485 RFE's are in essence a readjudicating of
the I-140 and request a laundry list of additional evidence including information about
the employer's "ability to pay" the wage offered. Please advise whether these
RFE's are an exception or reflect a change in policy at the CSC.
We attempt to adjudicate all applications without re-adjudicating the underlying petition.
However, each application is reviewed on a case by case basis. Recently visa numbers have
become available in all categories. Some of these petitions were approved many years ago
thus requiring verification that the employer and/ or employment is still available.
39. Procedure for Withdrawing an Approved I-485 Application. We understand that if
an employment-based adjustment of status application is made on behalf of a person, that
beneficiary must work for the petitioning employer upon its approval. In the instance
where the beneficiary leaves his employment with the sponsoring employer within 180 days
of filing the I-485, what is the best way of notifying the CSC that the beneficiary wishes
to withdraw his or her application? The beneficiary plans to start the application process
over again with a new employer.
In this instance, you should fax a withdrawal request to (949) 389-4384. FAX
followed by a hard copy of the withdrawal request. Please indicate all assigned INS
numbers and all beneficiaries.
40. Impact of Retrogression of Priority Date on Derivative's I-485 Filing.
Frequently, applicants submit their I-485 applications before getting married. If, after
getting married, the principle applicant's priority date has retrogressed and is no longer
current, can his derivative spouse still submit an I-485 application?
No, a visa number must be available at time of filing.
41. Form IRS 9003. Is Form IRS 9003 still required when filing an I-485
application? Members report that this form is longer required at some local INS offices.
Headquarters has advised that the IRS no longer uses this data. A memo is expected shortly
advising field offices that we are discontinuing the use of the form and that the Forms
Center will not include Form IRS 9003 in the I-485 package.
42. I-485 Portability. According to the INS memorandum dated June 19, 2001
concerning I-485 portability, an I-485 applicant can change employers after his/her I-485
application has been pending more than 180 days as long as the applicant finds new
employment which is the same or similar to the original employment. If the applicant no
longer intends to work for the petitioning employer, he is to submit a letter explaining
his change of intention and a letter from his new employer with salary, title and job
description. If the I-485 is approved more than 180 days from filing, but the applicant
has not yet sent these letters to the CSC, how should he submit the letters? Should he
submit them to the CSC or to the local INS office at the time of his I-89 processing?
They should be sent to the CSC for interfiling. In the absence of any other available
cover sheet that identifies these documents, it is suggested that the CSC "Correspondence
Cover Sheet" be used marking the line "All other. Please explain".
Members could state "new employment documents for interfile in "A…..".
A CSC Correspondence Coversheet is attached to this agenda.
43. Referrals to Local INS Offices. What is the current percentage of I-485
applications referred for interview at local offices? Is this number up from last year?
Please confirm the reasons for sending a case out for interview.
The percentage of cases that were relocated to the District for FY2000 is approximately
10%.
The following are required to be relocated to the District by our National SOP:
Fingerprints rejected twice by FBI
Fingerprints has a positive response (possible prior arrest)
Medical condition requiring a waiver
Jurisdiction (family based)
Does not meet interview waiver criteria
Principal's INS file located at District office
Dependent INS file located at District office
Asylum applicant
Applicant under investigation
Age-Out
Has multiple INS file numbers
44. Fingerprint Inquiry Process. Please confirm that the following is the procedure
for obtaining a fingerprint appointment:
1. If 120 days have elapsed from filing of the I-485 and the applicant has not
received a fingerprint notice, fax an inquiry to (949) 389-3484.
2. If you do not receive a reply or a fingerprint notice within 10 days, please
send a second fax to (949) 389-3198.
3. If you do not receive a reply or a fingerprint notice within 5 days, you have a
choice of calling the Center Director's Office at (949) 389-3007 OR using the AILA
CSC Liaison inquiry system by faxing CSC Fingerprint Inquiry form and Problem Case Inquiry
sheet to the attention of Liaison at (202) 371-9449. YOU CANNOT DO BOTH.
Yes, the above is the correct procedure to follow when requesting a fingerprint
appointment.
45. Attorney Notification of Fingerprint Appointments. Members report that they are
not receiving attorney copies of the fingerprint notices again. Can the CSC explain the
reason for this?
Yes, members will be receiving notices again, under the new SNAP system that was just
implemented. All appointment notices will be sent to the Attorney of record or to the
applicant if there is no attorney. There were some problems within the older computer
system; where information pulled from CLAIMS for scheduling did not always pull the
Attorney information, which caused such anomalies. With the new SNAP system, this should
not occur, as the information is not pulled from the CLAIMS system, it will be re-input
after data entry.
There is no intent to exclude attorneys from getting a copy of the notice. We are
switching over to a new process and this issue will be addressed.
46. Multiple Fingerprint Appointments. Employment-based I-485 applicants continue
to receive multiple fingerprint appointment notices just three to four months after being
fingerprinted. The notices contain no indication as to why the appointments are being
scheduled again. Would you please explain under what circumstances applicants are
scheduled for a second or third fingerprint appointment?
The possible causes of applicants to be scheduled multiple times are: 1)
computer system glitches while uploading and downloading information from one system to
another; 2) an officer rescheduling when they can not find an applicant's record in
the system; 3) non-identifiable fingerprint results are obtained; 4)
fingerprints expire; or 5) no record can be found that the applicant was scheduled.
If an applicant receives a fingerprint schedule notice within 90 days of having
fingerprints taken, they need to follow the instructions on the notice.
Again, we are changing over to a new fingerprint process and we have found that duplicate
notices are being sent. But sometimes the fingerprint is rejected by the FBI and the
applicant will have to be re-printed. That appointment notice will be sent directly from
the ASC. If you wish to verify that the appointment notice is a duplicate, please FAX a
request to the 949-389-3484.
47. Processing Time for I-485s. Please comment on the current processing time for
I-485 applications at the CSC. The JIT Report indicates a processing time of more than two
years, when just a few months ago it reflected a processing time of about six months. What
is the reason for this large jump backward in processing time and does it reflect the
actual processing time for such applications?
We cannot begin the adjudicative process until we receive a fingerprint processing
response from the FBI. The current processing time for adjudicating an I-485 is
approximately 6 months.
We discovered a fairly significant volume of cases that date back to 1998. While these
cases are anomalies, the volume was sufficient enough to warrant the JIT date regression.
The Center has taken an aggressive approach on these cases and we anticipate the JIT date
moving forward with the implementation of the SNAP fingerprint scheduling process and the
eventual start-up of the national fingerprint scheduler.
48. Shortage of Tetanus Vaccine. How is the CSC handling medical exams for
individuals who could not get a tetanus shot due to the general shortage of the vaccine?
See attached memo dated 05-17-01.
DIVISION V (I-90, I-824, 212 Waivers, 612 Waivers, NACARA)
49. 212 Waivers. Families remain separated and often suffer tremendous hardship
waiting several years for I-212 waivers to be adjudicated. What efforts are being made at
the CSC to reduce the processing time of these cases?
Since DIV V took over waiver adjudication, we have made significant progress on these
cases as can be seen on the JIT report movement in the last four months. When DIV V took
over responsibility for these cases, the JIT date was 1/27/97 and we are now adjudicating
cases received prior to 9/30/98.
50. 612 Waivers. The processing time for I-612 waivers used to be 3 to 6 months.
Now, it takes the CSC over two years to adjudicate such cases. Are these cases still being
adjudicated on a weekly basis as resources allow? What measures are being taken to reduce
this processing time?
Similarly, the I-612 JIT shelf is now current. As soon as I-612s come in to the CSC they
are brought to a journey-level CAO for adjudication. We then allow a month for
adjudication before honoring inquiries. By moving adjudication of the I-612s to DIV V, we
were able to eliminate our waiver backlog. In instances where we obtain an advisory
opinion from the Department of State Waiver Review Board on hardship or persecution
claims, the processing can take many months while we await a reply.
9/16/2001 |
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