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Cite as “Posted on AILA
InfoNet, Doc. No. 01090731 (November 15, 2003 ).”
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AILA VERMONT SERVICE CENTER
LIAISON MEETING
St. Albans, Vermont
August 13, 2001
On August 13, 2001, the AILA Vermont Service Center ("VSC") Liaison
Committee and Crystal Williams, AILA's Director of Liaison and Information, met with VSC
Center Director Paul Novak and almost his entire senior management staff, including the
Assistant Center Directors ("ACD") and various line supervisors. The
formal meeting began at about 1:15 p.m. Approximately 22 members of the VSC senior staff
were present. A full and frank discussion was held on many issues.
Mr. Novak, the Center Director, welcomed the committee to the Center and the participants
introduced themselves. Annie Wang, the committee chairperson, and Ms. Williams extended
AILA's appreciation for the face-to-face meeting and that so many front line managers were
present at the meeting.
The VSC responded in writing to the questions previously submitted on July 30th. The
questions and answers follow these general comments and will not be repeated. The
following issues were discussed in greater depth.
Access: Generally speaking, the problem with telephone access seems to be that INS
headquarters installed an update to the telephone systems at all of the Service Centers.
As a result, contact through the system appears to be slower. The VSC is working to have
these problems corrected as quickly as possible. There are at least 12 Information
Officers ("IIO's") on duty 5 days a week from 8:00 in the morning until
4:00 in the afternoon.
Todd Reader, the Assistant Center Director for the Business Product Line ("BPL")
hopes that a "faxpress system", much like the one that is used in premium
processing, can be expanded on a test case basis beginning October 1st and will be in
place by the end of December 2001.
The mailroom is approximately one month behind in general correspondence. It is
recommended that AILA members use general correspondence to try to correct misspelled
names, erroneous "A" numbers, etc.
The VSC has been holding I-129's for 90 days, but that may no longer be its policy because
it is running out of space and will most likely be moving files to the central storage
facility sooner than the 90 days. However, the good news is that the contractor operating
the storage facility and the contractor operating the mail facility are both the same.
This has not always been the case, resulting in delays in retrieving files sent to storage
by the Center.
Receipts: The VSC is very much aware of the need for processing I-485's so that
individuals are able to travel and obtain work authorization. They understand that the
filing of H or L extensions is burdensome not only to attorneys, but to the VSC as
well.
As is well known, the INS changed the contractor that is in charge of the mailroom. When
the contractor came on board, his contract provided that there would be no backlog. Then
along came Section 245(i)! It is the hope of the VSC that the frontlog will soon disappear
and that most receipts will be issued within 10 days of delivery to the VSC.
The VSC meets with the contractor weekly, and the contractor is attempting to restructure
the entire data entry process to speed up the issuance of receipts. N-400's and I-485's
are being prioritized and are being carefully watched by the VSC. The contractor has
expanded its hours to work 21 hours a day, 6 days a week. In addition, a "surge
facility" in Texas is being explored to assist in expediting clearance of the
current frontlog.
As suggested by AILA, the VSC will explore with the contractor the possibility of using
color-coded labels to identify the different types of applications being filed in the
hopes that might also speed up the process. In the meantime, VSC suggests marking the
outside of the envelope with the type of case e.g. H-1B; L-1, I-130IR, etc. If it involves
an RFE, it might also be well to place the EAC number on the outside of the envelope. The
back of an overnight courier mailer envelope can be used for this purpose.
Many members have expressed concerns as to when they can expect receipts. As a result,
they call the VSC for a status update.
It was noted that the workload at the VSC has exploded, with daily receipts exceeding $1.3
million dollars.
Rejections: Members are reminded that it is necessary to fully complete the Form
I-129W, especially the NAICS code. The contractor cannot enter the information into the
database without the NAICS code. The committee pointed out that the INS has agreed that
those sections relating to the fees and whether a beneficiary is exempt do not have to be
completed, if they do not apply, e.g., if an employer is not H-1B dependent. Members are
reminded that they must use the I-129W form bearing the date of December 18, 2000. Failure
to use the correct form or to fully complete the form will result in a rejection.
H-1B Issues: The Center has recently had approximately 100 new hires with an
additional 100 new hires on the near horizon. The new hires are not as sophisticated, nor
do they have the background, training, or experience as the more seasoned officers.
Accordingly, where many of us may take a lot of information for granted, it would be well
to go to a more detailed approach in submitting H-1B petitions. The VSC would find it
helpful if members would emphasize the specific job duties involved in a given position,
and then establish how the prospective employee is well suited to perform those duties,
both by pointing to the prior resume as well as specific course contents of the degree.
Members are urged to use the AILA liaison function if they believe that an RFE is
unwarranted or contrary to the law or regulations. If a given officer is in fact sending
out needless RFE's, the supervisory staff can identify and re-train that particular
individual. AILA National can thus spot trends quickly and call the matter to the
attention of the supervisory staff at the VSC. VSC supervisors welcome our input in this
direction.
For example, question 25 of the Q&A that follows deals with an SEC Form 10-K. It may
very well be that the adjudicator was unaware that a 10-K meant that the company was a
publicly traded company, together with all that means.
The VSC seems to be relying very heavily on the Occupational Outlook Handbook ("OOH").
It does consider other sources of information concerning background, training and
experience in various positions, but it does seem to place exceptional emphasis on the
OOH. Members might be advised to include a copy of the relevant pages from the OOH with
their submittal, if it supports their position that the beneficiary possesses a relevant
degree.
Premium Processing: The VSC recommends that if you have not received a decision
within 10 days of submittal, that it would be best to call or e-mail the Priority
Processing Unit (VSC.premium.processing@usdoj.gov).
There has been a glitch in the system for identifying premium processing receipts, but it
is hoped that the glitch has been removed.
Fingerprints: Fingerprinting for the I-485's are now manually scheduled. Fingerprint
notices go out only to the attorney at present. VSC has agreed to review the process and
will get back to AILA. The N-400 fingerprinting is completely automated.
Other Matters: Under premium processing, if you wish to have your receipt returned
via Federal Express or other private courier service, you must include a mailer as well as
the return pre-paid address label.
The VSC reiterated that it would not re-adjudicate cases previously approved, absent
egregious Service error or fraud. This applies to the liaison function as well as
extensions of existing status. However, adjudicators do have the discretion to review the
underlying petitions and if that adjudicator does not feel comfortable with the underlying
petition, can seek additional evidence.
At the conclusion of the formal meeting, Ms. Wang and Ms. Williams again thanked Mr. Novak
and his managers for the full and frank discussion. At approximately 3:30 p.m., the formal
meeting was adjourned.
Thereafter, several liaison committee members met with Keith Canney, a Business Product
Line Supervisor, to discuss general concepts involved in establishing qualifications for
H-1B and O visa status.
As is well understood, O visa classification requires that the applicant be one of the
very few individuals at the very top of the profession. A discussion was held concerning
how one established that basis. There is a presumption that an individual who qualifies
for an O-1 visa would have a significant amount of publicity. AILA pointed out that is
generally not the case in esoteric areas of study such as artificial intelligence. In
fact, there are so few people in artificial intelligence that only the very cream of the
crop of computer specialists tend to work in that field, and those individuals tend to be
exceedingly private. There are many other scientific fields where the individuals shun
publicity.
Further, in obtaining letters of recommendation, it may be useful to establish if the
writer is normally reluctant to provide letters of recommendation. AILA cited the case of
an internationally known scientist-researcher who provided a letter for an 0-1 applicant.
Just getting this individual to give a letter of recommendation was a significant feat in
and of itself. No other recommendations accompanied that particular 0-1 petition because
of the stature of this scientist. Accordingly, it might be well to explain how few times
an individual may have signed such a letter of recommendation. In addition, the VSC made
the point that "make weight" documentation can sometimes cause an
adjudicator to conclude that the petitioner has a weak case if the petition includes, for
example, a newspaper article that only mentions the beneficiary in passing.
In dealing with H-1B's, it is well to point out what specific courses in the transcript
are relevant to the job being filled. It might also be appropriate in some cases to
explain what was contained in a given course. A letter from the petitioner as to why the
beneficiary is qualified for the job, regardless of the degree, is most helpful to a less
experienced adjudicator, explaining in as great detail as possible how the background,
training and experience of the individual meets the needs of the company. It may be well
to explain, in layman's terminology, why the company wants to hire this person in the
first place. The VSC indicates that the experience letter is given great weight and,
therefore, it is suggested that it be as expansive in description as possible, especially
from prior employers.
Respectfully Submitted For
the Committee,
Gerry Rovner, Secretary
ACCESS:
1. The number one complaint recently continues to be the ability to reach the VSC via
telephone.
a. Has the phone system been down recently, or is the system just over burdened?
ANSWER: The telephone system has been very slow. We have let ADP know of our
concern. It appears that since our last new update the system has been much slower.
Several times throughout the day IIOs are waiting for call, yet other times there are 16
calls waiting.
Our main concern is that the public is calling the VSC with questions that could more
quickly be answered using the 1-800 number at the Telephone Center. The VSC is also
receiving a large number of calls that relate to cases from the other three Service
Centers. Providing good customer service, we get an answer for the caller, but end result
is this is much more time consuming, thus, tying up our phone lines. The only cases that
we should be answering calls on are cases that have been filed at the VSC, and the
applicant has received an I-797 from the VSC, there is a problem with the case, or if a
petition is pending and the VSC has exceeded the processing time. All other questions ( where
to obtain a form, the location of the nearest office, how to file, etc…) will be
answered more quickly by using the 1-800 number. The caller will not receive a busy
signal at all.
We receive numerous calls from attorney's offices that last well over an hour. Many calls
are for status checks. Status checks can be done through the 1-800 number or our automated
system.
b. Members are reporting, that if they eventually do get through to the information
line, they are being cut off after being on hold for an hour. What do you suggest?
ANSWER: I do not know why this is happening. We have not had any complaints on
this.
2. Has any progress been made on a response system for documents currently requested
via an RFE? For example, members ask if the VSC is making any headway in obtaining a fax
number or separate phone number to resolve simple questions such as a certified LCA
missing from an otherwise approvable H-1B case, or notices sent to the wrong attorney, or
misspellings, or an inaccurate A number, especially since it is virtually impossible to
get through on the Customer Service number?
ANSWER: Yes, some progress in this area is being made. We are using premium
processing as a vehicle to test the use of faxpress, for instance, as a way to communicate
more efficiently with petitioners and applicants. However, although premium processing is
getting a lot of attention, it only accounts for a small fraction of all the cases
adjudicated in the BPL. To use faxpress on a greater scale will require substantial
changes to our workflow and accounting procedures. Due to a number of reasons, not the
least of which is our acute space shortage, these changes will take some time. As I
previously indicated, it is our hope to begin looking at ways to expand the use of this
technology to rest of the BPL caseload at the beginning of the new fiscal year and to have
something in place by the end of this calendar year.
3. We have received a handful of reports of information officers ("IIO's")
refusing to give their names or otherwise identify themselves. Given that the AILA liaison
policy requires the member to give us the name of the IIO, what recourse do AILA members
have when we get such a refusal? What instructions have IIO's been given with respect to
identifying themselves?
ANSWER: The IIOs have been instructed to give their first names and/or their IF
numbers.
4. What is the best way of contacting the VSC concerning battered spouse cases? An
attorney of record asked if there is not a quicker way to communicate other than by mail,
especially when the member is doing pro bono cases and the client is desperate for work
authorization. The member indicates that no one returns phone calls.
ANSWER: 802-527-4888 for attorneys & representatives. This is a voice mail line
dedicated [sic] to VAWA-related cases ONLY. If you have called the standard Info line
number, the information officers (IO's) will not address these subjects. The reason for
this relates to petitioner security. The IO's do have instruction to transfer VAWA-related
calls to the 4888 extension.
If there is insufficient information given on a message such that the caller's identity
cannot be confirmed upon file review, the call will not be returned. Again, this is out of
concern for petitioner safety.
RECEIPTS:
5. Can you give us an update on the status of the mailroom? A member reported on July
20th that he had not received receipts for adjustments filed at the VSC, mailed on May 2,
2001 but received at your location on May 4th. Other members report not yet having gotten
receipts for applications sent in by courier on April 30 just as 245(i) was expiring.
Approximately where are you in clearing out your front log of receipts?
ANSWER: Our oldest Data Entry pending for I-485's is June 6 (this is the unit
from which the applicant would receive a receipt.) However, should there have been a
question or error on the submission, our pending for rejected filings is April. The answer
is; if the filing was questionable (fee, signature, jurisdiction, form incorrectly
completed) then the applicant would not yet have received any kind of a notice.
6. A member reports that an IIO named Agnes told him that the VSC computers were down
from June 21st to June 27th and that receipts from that period had been lost. Is the
statement accurate, and if so, will receipts be sent on those cases?
ANSWER: Notices for June 26, 27, and 28 were lost from the system. A listing of
notices created was produced and was worked manually to recreate notices for those
dates.
7. Are all types of applications receipted at the same rate or does the type of
application make a difference?
ANSWER: The Service sets the priority depending on the type of submission, so the
answer is yes. The type of application does make a difference.
8. How long does it take from the date of arrival at the VSC for the VSC to issue
receipts for I-129 H's?
ANSWER: Presently, I-129H filings are current. From the date of arrival at VSC to
the date the applicant receives a receipt notice should be no longer than 10 days.
9. How can members who have not received a receipt for a filing check on their cases?
The delivery was accomplished by a delivery service so there is proof of its arrival at
VSC.
ANSWER: If the applicant has not received a receipt for a filing and they are sure
the delivery was accomplished, then please contact our Information unit for assistance.
The Information Officer will check our pending for the submitted case type and advise the
applicant as to the next step he or she should take.
PROCESSING DELAYS:
10. The delay in issuance of the receipts for filing of an application or petition is a
cause of great concern to AILA members and their clients. If the INS district offices want
to assist by issuing advance parole documents or EADs for those cases that present
emergent circumstances, they need an "A" number or receipt number. What
is the outlook for the improvement of this situation? What is the possibility of creating
strategies in the meantime that would allow the district offices to assist in addressing
the emergent situations?
ANSWER: [See "Receipts" section of comments.]
11. As we understand it, responses to RFE's are to be returned to the original examiner
and jump ahead of new petitions being adjudicated by that same officer. A member received
a two-page RFE on May 3rd for a petition on behalf of a key employee of a major company. A
response was sent on May 4th. Despite repeated phone calls to the VSC during the months of
May, June, and July, the member received no response to the RFE and was not able to get
any information on the processing. An approval was finally received on July 24th. However,
this employee had to miss three major international conferences and several important
sales meetings because he was obliged to wait in the U.S. while this case was being
resolved. We believe that having to wait nearly 3 months for adjudication after making a
timely response to an RFE is unacceptable. Please explain the RFE process so that we can
share this with our members.
ANSWER: When an RFE is received it is updated, matched to the file and returned to
the officer for continued adjudication. The time this takes can vary depending on a number
of factors, but can be as short as two weeks or much longer if the case is eventually
denied or sent for investigation. Obviously the case in this instance appears to have
taken an inordinate amount of time given the fact it was ultimately approved. If you can
supply us with the EAC number we could certainly try to find out what caused this. Absent
that I can only speculate that this case was somehow caught-up in our 'frontlog' and not
identified timely as an RFE. Certainly the attorney in this case could have called our
information section to make inquiry when no word was forthcoming by the middle of June and
if that produced no results, could have brought the matter to the attention of an AILA
liaison for direct contact with one of [answer ends here]
12. It has recently come to our attention that delays at the VSC in processing I-181 forms
(containing all the data that is incorporated into an I-151 card) are causing
further delays at the New York District Office. According to a directive issued by the 245
Section Chief in NY, examiners have been instructed not to approve any cases where the
I-181 has been dated for less than 120 days. In such a case, the examiner is to issue a
G-56 notice to the applicant to return to the district office for stamping after the 120
days have elapsed. Is it possible for the VSC to take steps to address this backlog or
to avoid the resulting delays at the local offices?
ANSWER: Yes, we have all ready eliminated [sic] the backlog on I-181's.
13. A member reports that he had filed adjustment of status applications in April 2001,
which included I-765's and I-131's. The delay in processing the I-765 and I-131's is
creating a serious problem. Calls to the VSC result in the IIO's indicating that the front
log from Section 245(i) filings is responsible. How and when does the VSC plan to
resolve the issue of timely sending out receipts and adjudicating the travel documents and
work authorizations?
ANSWER: [See "Receipts" section of comments.]
REJECTIONS:
14. Members are concerned about the VSC's response when it makes an obvious error in
rejecting a case in the mailroom. If a case is rejected erroneously, we re-send the
application and mark the package clearly. We then call the next day with the tracking
number, and ask for the case to be pulled from the mailroom and restored in its proper
place in the queue, based on the initial filing date. Sometimes the IIO's are responsive
and will pull the case. At other times, the request is denied. The denial is always pinned
on a supervisor, with whom we can never speak. We would like to see a consistent policy
put in place where the Service will acknowledge and correct obvious errors. Why can we
not speak with a supervisor to clear up the problem or have a designated mailbox number in
the mailroom that goes directly to the supervisor?
ANSWER: I feel a lot of these problems are due to the front log. Typically, these
files do not get pulled unless we have an expedite request that has been approved.
Sometimes we will have them re-mail to us labeled error/ DO NOT REJECT and once it
gets into the system it will get worked. Sometimes they call and we have an expedite
approved for it and we will go to the mailroom to find it.
15. There has been another spate of H-1B filing rejections (as opposed to RFE's)
based on the I-129W: reports include rejections for the NAICS code not being completed,
and at least two rejections with instructions to use the new form when in fact the new
form was used. What instructions have the contractors been given with respect to
rejecting H-1B filings based on the I-129W? What can a member do when a filing has
been improperly rejected, particularly when there is an issue of timeliness of the filing?
This is another classic example where a hot line, fax line, or e-mail would be a
wonderful process to expeditiously resolve such issues.
ANSWER: We have recently revised the SOP [Standard Operating Procedures] the
contractors are using when rejecting an I-129 for an incomplete 129W. We have also revised
the reject notice to make it more specific. You should be seeing an improvement in this
process very soon. If you have a filing that has been improperly rejected, you certainly
can call our information line for help. The case can also be resubmitted with a letter
explaining why the case was improperly rejected.
DENIALS:
16. A member reports a denial on an L-1 where the individual has worked with the company
abroad over four years and has taken months of intensive, company-specific courses. This
involves a proprietary line of highly specialized software. A detailed response to the RFE
was sent. Nonetheless, the case has been denied. Also, the RFE contained "editorial"
language such as:
"The Service notes that your company has successfully petitioned
for many specialized workers. The purpose of the "L" provision
is to facilitate the admission of "key personnel" and "managerial
personnel," and it was not intended to alleviate or remedy a shortage
of U.S. workers."
Short of an appeal that will take more than two years, what can be done to seek
supervisory review in such circumstances?
ANSWER: As always, when an AILA member feels a decision on a case is in error and
warrants supervisory review prior to filing an appeal, that member should contact her/his
AILA liaison. If the AILA liaison agrees, there is a process already in place and used
daily by AILA liaisons for requesting supervisory review of cases they believe were
adjudicated in error. Channeling such requests through the liaison is working well and is
necessary since this center does not have sufficient supervisory resources to review every
denial that an AILA attorney disagrees with. Though regrettably lengthy, the appeals
process remains the appropriate avenue for further review in most cases. Without providing
the EAC# so we can review the decision, we cannot comment on the case mentioned above
other than to agree that the "editorial" language appears inappropriate
in so far as it is not supported by statute, regulation or policy.
17. A significant number of AILA members report that I-485s are being denied/and or they
are receiving RFE notifications indicating that their clients have not complied with a
request from the Service Center to have their fingerprints taken when, in fact, such was
completed by the client. The problem then seems to continue when the attorney's response (including
evidence that this step was completed) does not seem to get to the file in time, and
the application is denied. We are also receiving similar complaints in naturalization
cases. What is the recommended course for the attorney to take in this case to avoid
long delays, e.g., a motion to reopen?
ANSWER: The recommended course of action would be to have the follow the existing
procedures for case specific information. The current Assistant Center Director for the
I-485 workload is Sandra Bushey and the request should be directed to her attention.
18. We were advised by an AILA member that, after an adjustment of status application had
been filed, her office received a notice of intent to deny an I-140 multinational
executive/manager petition that had previously been approved by the VSC. The notice of
intent does not mention fraud or clear error with regard to the original approval. We
believe that, absent evidence of fraud or clear error, the action taken by the VSC was
inappropriate. Please comment.
ANSWER: Upon reviewing the file, our intent to revoke would appear to be
appropriate. The intent is based on the duties the beneficiary has been performing as an
L-1A, as well as those proposed in the I-140. A review of the submitted corporate tax
information does not support the information describing the size of the U.S. company or
the duties of the employees. This information was used to support the prior approvals.
19. A member reports continuing problems with I-102 applications for replacement of the
I-94 record. He reports that on the last four cases which he submitted to the VSC, he has
received RFE's which have asked for evidence of lawful admission, a copy of the visa on
which the individual last entered the United States, and the latest United States
admission stamp in the passport. The attorney's letter accompanying the I-102 indicated
that the passport and the I-94 were both reported lost and/or stolen to the local police
department. If the client had an admission stamp or other evidence of a lawful admission,
there would be no need to file the I-102. When the attorney replied that he had no further
information on the entry, the case was denied. What should be done in these
circumstances?
ANSWER: If the attorney indicated that the passport and I-94 were lost, the officer
should have not sent an RFE asking for those very items. However, if after a complete and
thorough search of the electronic systems it cannot be established that the beneficiary
was inspected and admitted, the officer has no option other then to deny the
application.
APPROVAL DATES ON EXTENSIONS:
20. A number of members report receiving I-539 extension applications with approval dates
being retroactively approved to a date that has already passed, essentially requiring the
applicant to re-file an additional I-539 to try to maintain status. Given the length of
time it takes the VSC to adjudicate I-539 extension applications, what do you suggest
be done so that the foreign national remains in status for a reasonable period of time
after adjudication?
ANSWER: We can only grant B-2 extensions for a maximum of six months. We assume
that the date requested on the 539 application is the date the applicant wishes.
Unfortunately, in many cases, the applicant has left the United States by the time we
adjudicate the application. You should see an improvement in the processing dates as we
are able to address our backlogs.
ADJUSTMENT OF STATUS:
21. When an adjustment of status application is filed with the VSC, should the package
of documents include the results of a medical exam?
ANSWER: The package should include a completed I-693 Medical Examination for Aliens
Seeking Adjustment of Status that must:
* be received in a sealed envelope
* be an original, and completed and signed by the civil surgeon, and
* have been executed no more than 1 year prior to the date of filing the I-485
All applicants must submit this evidence, regardless of age. However, only applicants' age
2 and older must have the Tuberculin Skin Test conducted per 42CFR 34.3(b)(2). Further,
only applicants 15 and older must have the Serologic Test for Syphilis and HIV.
If the filing is based upon the residence in U.S. since 01/01/72, a medical is not
required. Further, the District Office is responsible for determining the medical
requirements for K-1 applicants.
In addition, any I-485 submitted after 05/01/97 must include the Supplemental Form to the
I-693 for Immunization Requirements.
22. We believe the governing date for conditional permanent residence should be the date
the INS District Office stamps the passport, not the date that appears in the VSC
computer, which may be 5 months later. What should we do to correct the
discrepancy?
ANSWER: Technically the governing date is the date of adjustment which would be the
date that the I-485 was approved at the District Office. Normally this date can be found
in the "as of" section of the stamped I-181 creation of record. It may
also be the date that the passport was stamped by the District, but there are instances
where the passport is stamped after the date of the approval. If there is a discrepancy
between what the applicant believes is the date of adjustment and the date that is
indicated by the Service, a review of the A file and corresponding I-181 and I-485 should
reveal the correct date.
An incorrect date "in the computer" can be corrected based upon
information contained in the A-file.
23. AILA has received a flurry of reports of I-485 applications being denied as abandoned
because fingerprints were never taken when fingerprint notices were never received by
either the attorney or the applicant. All of these reports have been for situations where
neither the applicant nor the attorney has changed addresses. Why are attorneys not
receiving fingerprint notices in some cases? What can be done to expeditiously resolve the
situation when a case is denied for this reason? Would the VSC consider AILA providing the
VSC with a list of adjustment cases that were filed more than 120 days ago and for which
fingerprint notices have not yet been received?
ANSWER: Currently we are scheduling applicants who have a April 2001 receipt date.
If an acceptable G-28 is submitted, the fingerprint notice will go directly to the
attorney.
If an I-485 application has been denied and the applicant and/or attorney has never
received a fingerprint notice please contact the appropriate POC [point of contact]
with the pertinent information, including the name and A# of the applicant, and we will
review the case. If the case was denied in error, we can have the application opened on
Service Motion.
EDITOR'S NOTE: The VSC indicated that they have had a problem with the system. They
are scheduling fingerprint appointments for I-485 applications received in April 2001.
H VISA ISSUES
24. A member reports that she had filed seven H-1B petitions that had been previously
approved using the same package of evidence on all seven cases. Recently, she received an
RFE seeking information about the company having sufficient income to pay the prevailing
wage. This is not a start-up company, but rather a multi-million dollar entity that has
been in business for over 10 years. Isn't there some method by which the VSC can verify
information on companies that have previously filed H-1B's to prevent this needless RFE?
ANSWER: Unfortunately, at this point in time, we do not have a way to verify
information on companies that have previously filed H-1B's to prevent what you refer to as
a needless RFE. However, we should not be asking for information about a company having
sufficient income to pay the prevailing wage for an H-1b petition. If this is indeed the
case, we need the EAC number so that we can address quality issues.
25. A member reports that he received an RFE requesting a copy of the corporate tax return
along with W-2's for all employees. The corporation in question presented SEC Form 10-K,
which had been audited by Ernst & Young, and showed a gross income of nearly six
hundred million and a net profit of thirty four million dollars. Apparently, the examiner
read the numbers in the report as being in the thousands rather than millions of dollars.
This request seems to have been made in error or an abuse of discretion and is clearly
unwarranted. Please comment.
ANSWER: Again, without providing the EAC# so we can review the request for
evidence, we cannot comment other than to say that, if the facts presented are completely
accurate, we agree that requesting the corporate tax return and W-2s for all employees was
clearly unwarranted and was hopefully an error rather than an abuse of discretion.
26. A member reports that an I-539 application for a family member had been separated from
the principal's H-1B petition, with a requested change of status. The VSC then sent an RFE
asking for proof of the principal's applicant status. What can we do to prevent the
separation of files?
ANSWER: We continue to work on this problem with our contractor. Our Information
Officers have recently started pulling separate (or separated) I-539's for dependents,
once the principal nonimmigrants petition has been approved. Once pulled the files are
brought to the Business section for processing. Although this has improved dependent
processing, it requires a phone call to an Information Officer, and does not prevent the
initial separation.
It may be helpful to include a copy of the front of the principal's I-129 petition (latest)
with the dependent's I-539. Notate the copy with "Copy of principal's current
I-129." This can help the officer find the principal's current I-129 in the
system and prevent the unnecessary RFE.
27. AILA members are receiving an increasing number of RFE's that raise the issue of the
relevance of a beneficiary's degree. The following are examples:
a. An RFE challenging the course content of the beneficiary's degree as not being specific
enough for the specialty occupation. Does the VSC recognize that individuals receiving
degrees at foreign universities may not receive as narrow or focused an education as we do
in the United States? For example, there are thousands of highly qualified computer
professionals who have studied physics, engineering, telecommunications, etc., who have
received a Master's or even Ph.D. degree in those subjects, and may have worked for
several years in positions both for government and private industries, yet the VSC
continues to request educational evaluations.
ANSWER: VSC does recognize that individuals receiving degrees at foreign
universities may not receive as narrow or focused an education as students do in the
United States. Thus, we often request additional information when it is not clear that the
beneficiary has the education, training, and/or experience to perform the duties set forth
on the petition.
VSC presented our position on this issue to AILA in AILA's most recent visit to the VSC.
Our position has not changed. We are not prepared to recognize all degrees in physics,
mechanical engineering, or other engineering fields as degrees in a "closely
related" field to computer science. The burden is on the petitioner to establish
that the beneficiary's education (such as a physics degree), training, and/or
experience qualifies him/her to perform the duties stated on the petition.
b. Three H-1B petitions filed by the same entity that have been denied because the VSC
apparently fails to understand that a person with a mechanical engineering degree may have
the appropriate educational qualifications to fill a position as a Software Engineer. The
entity is a world leader in CAD/CAM technology, and develops a line of products that are
the "marriage" of mechanical engineering and computer engineering. This
is made clear in the documentation submitted to the VSC. A degree in mechanical
engineering is one of the company's most preferred backgrounds for its engineering
positions. The member's firm has represented the entity in its immigration matters for the
past ten years, and during this entire time has been consistent in articulating to the INS
that mechanical engineering is one of the few educational backgrounds appropriate for this
job. In each of these three cases, a detailed statement was submitted in response to the
RFE explaining why a background in mechanical engineering was appropriate to the position
and the fact that this position concerns CAD/CAM and the design of 3-dimensional devices (ships,
airplanes, buses, cars, etc.) and is therefore not a "typical"
software engineer position. This appears to be an example of an examiner not carefully
reading the submissions.
ANSWER: It appears this receipt number should have been forwarded to a BPL
supervisor through an AILA liaison for review.
c. A denial with respect to a petitioner who develops Digital Signal Processing
applications, including a set of processes and toolboxes that allow scientists to perform
Digital Signal Processing. During the past ten years, the company has been consistent in
asking for a degree in Mechanical Engineering for this position. The VSC has just denied
the H-1B petition of a key employee who has an M.S. in Mechanical Engineering with a
specific academic program in Digital Signal Processing. The beneficiary is perfectly
suited to his position. To make matters worse, as part of the response to the RFE, an
expert opinion was included from a professor in the field who considered all of these
facts and concluded that there indeed exists a clear and strong "nexus"
between the job duties and the beneficiary's background. The denial makes no reference to
this letter, and it appears that it was either lost or completely disregarded.
ANSWER: It appears this receipt number should have been forwarded to a BPL
supervisor through an AILA liaison for review.
28. Some medical residents for whom three-year contracts have been enclosed in H-1B
applications have only been granted one year H-1Bs due to the period of validity of their
license. In Pennsylvania, medical training licenses are granted for a maximum of one year
with easy renewal. Some of these cases, with the same documentation, have been granted one
year; others all three. Can you explain this discrepancy?
ANSWER: According to 8 C.F.R. 214.2 (h) (4) (v) (E), an H petition may only be
approved for a period of one year or for the period that the temporary license is valid,
whichever is longer, unless the alien already has a permanent license to practice the
occupation. Similarly, an extension may not be granted unless the beneficiary has obtained
a permanent license in the state of intended employment or continues to hold a temporary
license valid in the same state for the period of the requested extension. Since these
medical training licenses from Pennsylvania appear to be temporary rather than permanent
licenses and are granted for a maximum of one year, officers are correct in limiting such
approvals to one year.
The confusion, discrepancy and inconsistency arises because some of our officers, in spite
of this regulation, grant three years based upon guidance contained in a July 10, 1995
memorandum from John Brown addressing the validity period of I-129 petitions. In this memo
John states that, historically, the service has not limited the validity of I-129
petitions on the basis of such factors as the validity of the beneficiary's license. He
goes on to say that, in many occupations, the alien's license will not be valid for the
length of time initially requested by the petitioner and that service officers should not
arbitrarily limit the validity of H1B petitions on the basis of the alien's licensure.
Where regulation and HQ guidance conflict, regulation prevails, and we feel our officers
granting one year are correct. However, realizing that these licenses are routinely
renewed, we find no fault with the officers who choose to follow the HQ guidance and grant
three years. To achieve consistency at this center and service wide, we suggest you ask
headquarters to issue a policy memorandum regarding this matter.
PORTABILITY:
29. Under the new portability provisions for H-1B's, some cases were filed where an
individual started work with the new H-1B employer once the attorney was satisfied that
the I-129 had been received at the VSC. Subsequently, the case was rejected because of,
for example, an unsigned check or an outdated form. Can you comment upon the policy of
the VSC as to how these cases will be handled, and are there any specific guidelines that
you can provide on how attorneys should handle these situations when they occur?
ANSWER: In the example that you have provided above, the I-129 H1B petition would
not be considered properly filed. It is the responsibility of the petitioner to submit a
properly filed petition. These types of cases will be handled in the same manner as any
case that is rejected due to an unsigned check or an outdated form. In the scenario that
you have submitted above, we would reject the I-129H1B and supporting documentation back
to the petitioner with a notice indicating the deficiency.
PREMIUM PROCESSING:
30. Can you report on how premium processing has been working thus far? We have
received numerous complaints that the only processing that is occurring is the rapid
return of inappropriate RFE's. For example a member reports filing an O-1 under premium
processing on Monday, July 9th only to receive a two-page RFE via fax on Friday, July
13th. This is a prominent beneficiary who has already had an I-140 outstanding researcher
petition approved recently. The VSC examiner failed to read all the evidence and asked for
items that were not only included in the original, but also prominently featured. A
similar fact pattern occurred in an L-1 where the Officer requested the most basic of
information about the parent corporation that was included in the original filing. Please
comment.
ANSWER: From our standpoint, Premium Processing has been successful to date. We
have received few negative comments from the public/AILA. The statement about numerous
complaints about inappropriate RFE's comes as a surprise to us because we have received
few calls challenging our Premium Processing RFE's. The BPL supervisors have not received
any calls from AILA liaisons concerning this issue.
We do admit to the rapid return of decisions, but not at the expense of issuing erroneous
or inappropriate RFE's. We have articulated to our officers that they are expected to
issue the same decision as if the case were not a Premium Processing case. Our review of
such cases leads us to believe that we are issuing appropriate decisions. If an AILA
attorney feels otherwise, they may call or e-mail the Premium Processing Unit to discuss
the issue with an officer. If that does not provide a satisfactory resolution, an AILA
liaison may contact either Keith Canney or Dan Kane for review.
With respect to the example provided above, keep in mind that although somewhat similar,
the regulatory standards for an O-1 nonimmigrant and an E12 immigrant are not the same.
31. Since members are reporting a significant number of RFE's for premium processing
cases, we wonder if the VSC has any statistical data on the number of premium processing
cases filed, the number of RFE's, and the number of initial approvals of premium
processing without RFE's?
ANSWER: As of August 6, 2001 approximately 2519 premium processing cases have been
filed at the VSC. We have not been maintaining separate statistical data on the number of
RFE's, and the number of initial approvals of premium processing cases without RFE's.
EDITOR'S NOTE: When an RFE is sent under premium processing, the VSC has 15 days to
respond.
32. Does the VSC have any recommendations or requests concerning the filing of premium
processing requests for H-1B or other petitions?
ANSWER: It is best to file the I-129 and I-907 for Premium Processing concurrently.
If the case has already been filed and resides in our backlog, be sure to include a copy
of your receipt notice with the submission of the I-907.
We initially had trouble with the Premium Processing automated phone system. HQ has
apparently fixed the problem. If AILA attorneys have a Premium Processing receipt number
and our automated phone system fails to recognize it as a Premium Processing case, please
forward the receipt number via e-mail to vsc.premium.processing@usdoj.gov.
33. If a member has filed an H-1B prior to July 30th and now wishes to proceed under
premium processing, what should she do? Is it necessary to resubmit the entire package?
ANSWER: In the scenario that you have presented, it is not necessary to resubmit
the entire package. If a petitioner or authorized representative wishes to request premium
processing on an I-129 H1B petition that is currently located in the backlog at VSC, they
should submit the following items to the VSC:
OTHER ISSUES:
34. What does the VSC suggest be done to report a change of address of either the
attorney of record or the foreign national in any pending petitions?
ANSWER: A change of address should be done one of two ways, either by telephone or
written correspondence.
35. Can you discuss the authorized staffing levels at the VSC for the various product
lines and the number of vacancies, if any, that currently exist?
ANSWER: The Family PL has 74 CAO's [Center Adjudications Officer], Business
has 55 CAO's and Resident has 44 CAO's. We will be hiring an additional 90 CAO's for the
Family and Business Product Lines.
36. In Boston, the AILA chapter and the District Office use a problem case inquiry form.
Sometimes in answer to the inquiry, Boston will respond that the file was sent to Vermont
(for green card production) and the case was probably approved. However, no
approval notice is generated. Boston will not issue one because it no longer has the file.
Members then write to the green card production unit in Vermont to find out the status of
the case and whether it was in fact approved. Boston is reluctant to pull the file back to
issue the approval. The VSC does not respond. This is very frustrating; if the client
finally gets a green card in the mail, all is well, but if not, how can we follow up?
ANSWER: Files come to the VSC from the District Offices in a variety of forms for
I-551 production. We receive I-90's, I-181's and CR-89's. These are combined with directly
filed I-765's to form a card production workload of over 600,000 per year. The follow-up
method for each of these is identical regardless of the form type or who actually
adjudicated the form. You may correspond in writing or call the public line and the
Information Officer receiving your inquiry will look in the system. If they cannot provide
a proper response based on the information in front of them, they refer the case to our
specially designated team dedicated to resolving all card issues including EAD's. This
team handles a variety of issues including data discrepancies, "stuck"
cards, picture issues and more. We work hard to correct all errors as we know how
important these documents are to all the applicants. It disturbs us to hear that you
indicate that the "The VSC does not respond." and we would be very interested
evidence of that lack of response. We would like to know if you are claiming that it is
pervasive or just related to a specific form type. As we intend to respond to every
inquiry and correct every error, we need more information.
37. We were informed by INS in Newark that the VSC is sending I-140 petitions to district
offices to detect possible fraud and this is being done at random. Can the VSC verify
this? Is there a fraud "program" that they can tell us about?
ANSWER: The OPS Unit is not currently forwarding randomly selected I-140 cases to
any district for possible fraud detection.
38. Would it be possible for you to give us an updated processing table to include
actual date of receipt at the VSC, and the actual dates upon which the VSC is adjudicating
that particular type of case, and finally, the date that the decision leaves the
VSC?
ANSWER:
See attached (click
here for attachment)
39. How does the VSC determine when a petition or application has been pending beyond
the normal processing time? Can you explain the discrepancy between the date a petition is
actually received and what an IIO states as the relevant date, which apparently is based
on the date the receipt notice was issued?
ANSWER: A petition that is pending beyond the normal processing time is when that
has not been worked yet and is beyond the dates we have listed on our pending reports.
40. In the past, the VSC has prioritized the adjudication of I-130 petitions; usually,
the immediate relative petitions were given higher priority and were adjudicated on a more
expedited basis. Is this still the case?
ANSWER: Yes, this is still the case. The availability of visas for preference cases
has regressed significantly, with first and third preference visas showing unavailability
for the month of August. Therefore, we will concentrate on processing the IR petitions.
When preference visas do become available, or we work through the IR cases, we will then
begin processing of the preference cases.
41. We have received numerous complaints from AILA members about requests for evidence
that are unwarranted or in which the VSC appears to be readjudicating issues that had been
previously resolved. One such example involves an I-140 multinational executive petition
for the CFO of a joint venture between two large manufacturers, where the RFE requests
evidence of, among other things, the one year of continuous employment abroad and the
executive or managerial nature of the overseas and U.S. positions. We submit that many, if
not all, of these issues had been addressed in the initial L-1 petition and the L-1
petition extension and should not be revisited. Would you agree with AILA's position
that issues that have already been addressed should not be readjudicated?
ANSWER: After reviewing the file, we would agree with you. Much of the information
requested in our RFE was either in the ROP or would appear to have been addressed in the
earlier I-129 L filings. We presently have an officer reviewing the case in order to
confirm that the case is in order, a revised decision will be issued in the near future.
KUDOS:
42. A member wishes to thank the VSC for their compassion and efficiency. In a recent age
out case, your Center acted quickly in an adjustment application for a family who had to
flee the home country for political reasons with especially humanitarian circumstances.
Returning the client to his home country would have been a death sentence, and the member
asks that we convey a public "thank you".
43. Another member wishes to express her thanks for the expeditious handling of a P-1
singing group. The filing got "messed up" in her office, and she was most
grateful to the VSC in resolving the matter and allowing the performances to go forward.
She wishes to express her gratitude to Mr. Reader for "making it happen"
within hours.
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