Labor Immigration Law

The Texas Service Center (TSC) recently launched a pilot program pursuant to which employment-based I-485 applicants can facilitate TSC processes relating to specific stages of the employment-based adjustment of status.  A special email address has been designated for this purpose: ebupdate.tsc@dhs.gov.

Procedure and Process

Notification of AC21 Change of Employer
I-485 applicants who wish to change employer and retain their adjustment process pursuant to AC21 are advised to follow the following steps:

1. Identify only one applicant in a single e-mail. E -mails must pertain to applicants whose I-485s have been pending for 180 or more days and who are eligible for AC21 porting.
2. Send an email to: EBUPDATE.Tsc@dhs.gov.
3. On the subject line,  write “EB I-485/AC21.” (Example: EB I-485/AC21)
4. In the text of the email, provide: A-number, old employer’s name and new employer’s name.  Attach a copy of the new employer’s letter of employment. The letter must identify the following information: the new employer, the letter’s author and his/her job title, the applicant’s new job title, start date of new employment, hours per week, salary, and specific description of the duties to be performed.
5. If the applicant has more than one A-number, they should be typed on the same line separated by a “/”. (Example: All 1222333 I A444555666). If there are multiple family members, they should be typed  all on the same line separated by commas. (Example: AIII222333, A222333444, A444555666). You should also indicate which of the A-numbers is that of the principal I-485 applicant / I I-140 beneficiary.

Notification When an Applicant Has Multiple I-140s With Available Priority Dates

Notification When Applicant is Eligible for Cross-Country Chargeability

Applicants who are eligible to obtain chargeability under a different country should follow the following procedure:

1. As with the categories described above,  identify only one applicant in a single e-mail. E-mails should pertain to applicants whose I-485s are currently eligible for processing because the applicant is entitled to receive a cross-charged priority date from a qualifying family member under Section 202 of the Immigration and Nationality Act.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line, write “I-485/ CC”
4. In the text of the email,  provide A-numbers, including the A-number of the I-485 applicant who will acquire the current priority date from the qualifying family member, and the country of cross chargeability. Also include the A-number of the family member who will confer the current priority date.  If the applicant who is to receive the cross-charged priority date has more than one A-number, or if there are multiple family members,  the instructions described above under AC 21 portability apply.

Notification of Case in Need of Transfer

Applicants can also notify TSC of cases which are in need of transfer.  The procedure is as follows:

1. Identify only one applicant in a single e-mail. E-mails must pertain to applicants whose I-485s are eligible for processing because the priority date of another petition relating to the I-485 applicant (such as an I-130) has a visa available.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line,  write “Transfer”.
4. In the text of the email, provide A-numbers or receipt numbers and the office to which the I-485 should be transferred. If the applicant has more than one A-number, or if there are multiple family members please follow the instructions described above under the AC 21 portability instructions.

Conclusion
TSC’s pilot notification program is a great idea; however, its success will depend on how well TSC will respond to legitimate notifications send to them via the new email address and how well TSC will advise applicants who use the notification tool of the status and progress of their request.  We will continue monitoring this pilot program and using it with selected clients who can benefit from it and will provide further updates on the pilot program’s usefulness.

In connection with the 2007 adjustment of status (I-485) filing “blizzard” and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   One of the most frequent questions we receive is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

In a November 2009 AILA meeting, Mr. Charlie Oppenheim, who is Chief of the Immigrant Visa Control and Reporting Division at the Department of State (or also known as the person who determines the visa bulletin dates), has indicated some ways in which the visa bulletin numbers will move over the next few months.

Mr. Oppenheim’s Comments

Although there is no guarantee that Mr. Oppenheim’s comments to AILA would turn into reality, he has been very accurate and careful in his comments in the past.

EB-3 Worldwide (ROW).  Visa numbers are expected to progress to April-August 2005.  Such movement will be gradual and is expected to start in January or February of 2010.

EB-2 China and India.  Annual limits are expected to be reached no later than May.  It is possible that otherwise unused second preference numbers to be made available.  This makes the cut-off date for both EB-2 India and China to progress to October-December 2005.

EB-3 China.  It is expected to move along with EB-3 ROW over the next few months.  The fiscal year is expected to end with a June-September 2003 cut-off.

EB-3 India.  Very slow movement expected.  There are 58,000 pending applications and it is expected to move only  up to five (5) weeks over the entire fiscal year.

Our Conclusion

While there are some good news in this announcement, it becomes clear that some categories, especially EB-3 India, become very undesirable and we strongly recommend clients and readers who are in EB-3 India to consider either filing in EB-2, if possible, given education and experience.  Many EB-3 India applicants who have been waiting for 4-5 years already find themselves facing another 4-5 year wait.  As a result, we often see second EB-2 applications using the recently gained experience filed (often by switching employers) by retaining the earlier EB-3 priority date.  Please contact us if we can help you understand whether your case may qualify.

In an article dated November 17, 2009, we wrote about the CDC reversing course and eliminating the requirement of HPV vaccine for immigrant applicants, including I-485 adjustment applications.  The new rule had an effective date of December 14, 2009, so our office has received a number of inquiries about (1) what happens with pending adjustments which may not have the HPV vaccine in the I-693 form and (2) should new adjustment applicants wait until December 14, 2009 to file their I-485.

In a recent guidance, USCIS provides clarity to these important adjustment of status questions.

Pending Adjustment Applications

USCIS has indicated that since November 13, 2009, USCIS will hold any application that would have been denied solely on the applicant’s failure to show proof of having received the HPV or zoster vaccine.  USCIS will resume adjudication on these cases after December 14, 2009, when the new rules take effect.

New Adjustment Applications

Under the new USCIS guidance, prospective applicants to adjust status  do not need to wait until December 14, 2009, to file their I-485 petitions.  Instead, the I-485 may be filed before December 14 without having proof of the HPV or zoster vaccine.  Given current processing times, it is impossible for USCIS to complete processing of the I-485 by December 14 so that once the application is due to be reviewed, the new CDC rules would have taken effect on December 14, 2009.

In a shift in  policy, the CDC has announced that effective Decemeber 14, 2009, the HPV vaccine will no longer be required for immigrants applying for immigrant visa or adjusting their status from within the U.S.

Background About the Required Vaccinations

Under Section 212(a)(1)(A)(ii) of the Immigration and Nationality Act (INA), any alien who seeks admission into the United States as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, is inadmissible into the United States if the alien is unable to present documentation of having received vaccination against “vaccine-preventable diseases, which shall include at least the following diseases: Mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type B, and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee on Immunization Practices.”  Current guidance by the Center of Disease Control (“CDC”) includes the HPV vaccin to the list of vaccine-preventable diseases and is therefore required by girls and women between the ages of 11 and 26 who are seeking to become legal permanent US residents.  Those within this age range were required to get at least the first dose of the HPV vaccine, which protects against some strains of the virus blamed for cervical cancer. Additionally, the Gardasil shot was added to the vaccine list for immigrants in July 2008 by the CDC.

HPV Vaccine Requirement Controversy 

While HPV remains the single most widespread sexually transmitted disease in the country, only a small percentage of those infected with the virus will go on to develop life-threatening diseases like cervical cancer. The cost-effectiveness of the Gardasil vaccine (the HPV vaccine) remains largely in debate especially when young girls coming from a variety of foreign nationalities and cultures have to be subjected to medical exam and vaccination.  Additionally, the price of the vaccine, which is administered in three separate shots, can cost anywhere from $400 to $1000  (and the cost is often not reimbursable by insurance companies).

New CDC Guidance

Accordingly, CDC has announced a revised rule which becomes effective December 14, 2009, and under which the HPV vaccine will not be required for aliens seeking admission as an immigrant or seeking adjustment of status to that of an alien lawfully admitted for permanent residence.

In providing explanation to this change in policy, CDC recognized that genital infection with HPV is an extremely common infection due to its efficient transmission via sexual intercourse. There are approximately 6 million incident infections occurring annually in the United States. Over half of sexually active men and women will develop HPV infection at some point in their lives and 15% of all Americans have current infection with HPV.

Although there are millions of HPV infections annually, it is very difficult to distinguish those cases which resolve from those (about 10,000 per year) cases which result in cervical cancer.  Therefore, while HPV may be an age-appropriate vaccine for an immigrant applicant, HPV neither causes outbreaks nor is it associated with outbreaks (per explanation in the background section).  Further, HPV has not been eliminated, nor is in the process of elimination, in the United States. Therefore, because HPV does not meet the adopted criteria, it will not be a required vaccine for immigrant and adjustment of status to permanent residence applicants.

We are aware of many cases in which USCIS approves Form I-485 for the principal applicant but does not do so for any derivative family members’ I-485 petitions.   While in some cases this may be due to missing evidence, security clearance difficulties, or some other legitimate reason, in many cases it is possible that the derivative applicant’s file may just be separated from the principal applicant’s file.

To address this kind of cases, USCIS Ombudsman has provided a new procedure which may help derivative applicants.   Under the new procedure, if a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s Form I-485, an email inquiry with subject line of “Unapproved Derivative I-485″  should be submitted to cisombudsman.publicaffairs@dhs.gov with the following information:

• DHS Form 7001;
• A copy of the principal applicant’s Form I-485 approval notice;
• A copy of the Form I-485 receipt notice for the derivative; and
• Any other evidence that is pertinent to the case.

This procedure was announced on October 8, 2009, so we do not yet have opinion about its usefulness, but we hope that it provides another avenue for derivative beneficiaries to move forward with their I-485 adjustment of status application.

USCIS has released a schedule of the inventory of pending Form I-485, Application to Adjust Status.   The statistics are fairly recent – as of August 25, 2009 – and are very helpful to understanding the relative queue positions for adjustment of status applicants.

How Can I Determine My Place in the AOS Queue?

An AOS application’s preference category, priority date, and country of origin determine its place in line for a visa.  The earlier your priority date is, the closer you are to the front of the line.     The “Pending Employment-Based Form I-485 Report” displays the total number of pending adjustment of status applications, per preference classification. The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.  You can use this chart to determine how many applicants in your preference classification have priority dates in the same month and year as your own.  Also, you can determine how many applicants in your preference classification are ahead of you in line for a visa number by adding together the number of cases with an earlier priority date than your own.

 Ensure That You Use The Report Relevant to Your AOS

All applicants for an employment-based green card may use the pending Form I-485 report to determine their place in line for a visa.  Because certain countries experience higher demand than others, applicants in these “oversubscribed” countries may move forward in line more slowly than applicants in countries experiencing less demand.  In other words, in order to obtain a visa, applicants in oversubscribed countries may need to have earlier priority dates than applicants in countries experiencing less demand.  Applicants in oversubscribed countries may therefore want to also refer to the report for their specific country of chargeability to determine where they stand in line with other applicants from that country.

Conclusion

We are pleased with USCIS’ efforts to provide more transparency by compiling and releasing the I-485 inventory data.  While we realize that for some of our clients and readers the inventory information will show that there is still a significant wait, the fact that AOS applicants can obtain some empirical estimate of their relative place in the processing queue is important.

The Nebraska and Texas Service Centers (NSC and TSC, respectively) have informed that they will start issuing denials on pending I-485 upon denial of the underlying I-140 petition.

Until now, USCIS has a policy from a Memorandum of Feb. 28, 2003 from William R. Yates, “Procedures for Concurrently Filed Family-Based or Employment-Based Form I-485 when the Underlying Visa Petition is Denied” pursuant to which policy TSC has been using its discretion to wait 30 days before denying the I-485 applications, in case an I-290B was filed on the I-140 denial and TSC might be able to act on that at the Service Center level.

Under the new policy, both TSC and NSC will deny I-485 applications when they deny the underlying I-140 petition.   As a result, a motion to reopen/reconsider or appeal on Form I-290B will have to be filed not only on the I-140 denial but also for all of the I-485 denials (more than one of the direct beneficiary has dependents). This not only creates additional work for preparing and filing more I-290B forms, but also requires additional payments of the I-290B filing fee (which is $585.00 as of the time of this writing).

USCIS has announced that, in conjunction with FBI, it has met its goal of eliminating the FBI National Name Check Program backlog.

The goal was to achieve a performance (which can actually be sustained going forward) of completing 98 percent of name checks requests submitted by USCIS within 30 days and the remaining 2 percent within 90 days.   USCIS has announced that this performance level will become the standard.

USCIS has noted, however, that any information provided by the FBI through these checks may require further evaluation and may need additional interaction with agencies outside USCIS to obtain updated or additional information. This could result in additional delays in processing and is not governed by the processing goals contained in the joint business plan.  There is no estimate on the percentage of such cases in which additional checks (and the corresponding delays) may be expected.

Last week we provide a number of updates from the Nebraska Service Center.  This week we provided some updates from the Texas Service Center (“TSC”).  The TSC updates come from the senior management and are as of May 19, 2009.

Processing Numbers.   TSC has shown improvement in the processing numbers.  Previously, TSC was processing between 3,000-4,000 I-140s and concurrent I-140/I-485sper month.  Recently, TSC has improved to 3,500-4,500 such cases per month.  TSC’s goal is to improve the processing of I-140s down to 4 months by June 2009 (this month!).

Pre-processing.  Similarly to the Nebraska Service Center, TSC is pre-processing (or “pre-adjudicating”) I-485s.  TSC reported that they have pre-processed 85,000 I-485s which are in queue for processing and are waiting for a visa number to be available.

July 2007 “tsunami”.  TSC reported that they have “almost completed”  adjudication of I-140s filed during the “visa tsunami” of July and August 2007.