Labor Immigration Law

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.

The Department of Homeland Security’s Office of Immigration Statistics has released its annual U.S. Permanent Residents: 2008 report.   The report provides a summary of the approvals of the various types of legal permanent resident (LPR) petitions.  According to the report, in 2008, a total of 1,107,126 persons became LPRs.  Of these, 58% already lived in the U.S. (and adjusted status, Form I-485).  Nearly 65% were granted LPR based on family relationship with a U.S. citizen or LPR.  The leading countries were Mexico (17%), China (7%) and India (6%).

The report provides a very useful breakdown by category and year which allows us to analyze the trends in green card approvals.  It is important to note that both 2007 and 2008 noted a slight decrease in the total number of green cards given.  In 2006, DHS recorded  1,266,129 green cards.  The decrease in 2008 is wholly attributed to a decrease in the family-based petitions. Despite this slight decrease, the numbers of green cards approved for each of the family-based categories remained fairly stable over the past three years.

The employment-based petitions in 2008 increased from 159,081 (2006) to 162,176 (2007) to 166,511 (2008).  It is interesting to note that the number of EB-1 petitions remained stable, while the number of EB-2 green cards approved increased significantly, more than 3 times from 21,911 (2006) to 70,046 (2008).   On the other hand, EB-2 recorded a significant decrease, from 89,922 (2006) and 85,030 (2007) to only 48,903 in 2008.  What do these numbers mean?  We think that they suggest a trend in that many applicants for green cards who are in EB-3 are, after many years of waiting, trying to upgrade and ultimately succeeding in obtaining their green cards approved under the EB-2 category.

We wrote last week about the April 2009 Visa Bulletin and the significant retrogression of the visa numbers in EB-3 Rest of World (ROW) category.  It is important to note that the April 2009 Visa Bulletin retrogression for EB-3 will be applied immediately, as opposed to as of April 1, 2009 (see last sentence of Item A, paragraph 1 of the April 2009 Visa Bulletin).

Also, Charles Oppenheim of the State Department has indicated that further retrogression or “unavailability” at any time cannot be ruled out.” As a result, it is highly unlikely the EB-3 category will remain available in the near future. Further retrogression or “unavailability” may occur at any time.   As a result, immigrant visas can be issued by consular posts at interviews this month only if the consular post has obtained the visa number prior to the announcement of the cut-off. Additionally, USCIS will not approve any adjustments in the EB-3 category with cutoff dates before May 1, 2005, unless the visa number already had been assigned.

The American Competitiveness in the 21st Century Act (AC21) permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

We have been receiving numerous inquiries from individuals who wish to “port” their green card process to a “same or similar job” with different employer.  In addition to the question whether the new job is “same or similar”, the answer to which is beyond the scope of this post, the second most often question we receive is “When Should I Invoke AC21?”

Should I File AC21 Notification with USCIS?

Invoking AC21 is automatic.  In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has  successfully taken advantage of green card portability provisions of AC21.  However, USCIS does not know that the individual has changed job.  As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing a Ac21 notification with USCIS helps avoid problems in the future.

If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something wrong with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485.  There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and their cases were still denied.  Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.

Another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case.  Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.

If I Decide to File AC21 Notification, When Is the Best Time To Do So?

Generally, there are two opportunities to file AC21 notification.  One is shortly after the individual starts his or her employment with the new employer.  The second one is if there is an RFE or NOID issued by USCIS.   Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.

From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

• You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter.  On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
• Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work.  On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
• You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible.  As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs.  Having your own attorney receive and address such correspondence as early as possible is important.

We Can Help You Analyze The Best Course of Action for AC21

We have helped many individuals change employers and invoke AC21 while preserving their green card process.  If done properly, such AC21 porting should not raise problems with USCIS and should allow you to take full advantage of your skills and education.  Please contact us and we would be happy to review your AC21 case and advise you on the best course of action.

The Government Accountability Office (“GAO”) has published a report, “Actions Needed to Address Vulnerabilities in Process for Granting Permanent Residency” which reviews the process of security review of applications for legal permanent residency.  GAO’s recommends that USCIS establish a timetable for addressing the deficiencies noted in the report and establish procedures that would require some sort of verification of certain evidence submitted with petitions for legal permanent residency.

Among the most notable items of the report was the criticism and reserved hope that FBI will clear the backlog of pending security checks.  According to the GAO,  of the approximately 917,000 applications for LPR USCIS received from January 1, 2006, through May 31, 2007, 516 (0.05 percent) were referred to USCIS’s Office of Fraud Detection and National Security (FDNS) for national security concerns.

In addition, USCIS had encountered delays in obtaining the results of FBI name checks—FBI checks of its investigative files—for LPR applicants and others, and had issues regarding the usefulness of these results, but USCIS and the FBI have taken a number of actions that have improved these checks. The FBI dedicated more staff to process name checks, and USCIS provided additional funding and training to FBI staff. As a result, the number of pending name checks has decreased 90 percent, from 329,000 in May 2007 to 32,000 as of September 30, 2008. The FBI plans on being able to complete all name checks within 90 days of receipt by June 2009.

Finally, some concerns were raised about the ability of USCIS to detect benefit fraud, most notably lack of ability to  verify evidence submitted in support of LPR petitions.  GAO’s recommendation was to implement some requirements and procedures whereby certain evidence submitted by petitioners be properly verified.  USCIS has agreed with this recommendation and has indicated that it would work on creating a set of guidelines on supporting document verification.  It is unclear at this time what these guidelines would look like.

The Texas Service Center (TSC) has introduced a new email procedure that which is available to attorneys who are AILA members and allows the Texas Service Center to identify I-485s and I-140s which have remained pending beyond TSC processing times posted on USCIS’S website.

According to the new procedure, which is effective immediately, I-485s are subject to the new procedure only when an immigrant visa has been made available, according to the State Department Visa Bulletin.   The new procedure allows submission via email of I-485 cases which are subject to review based on the visa numbers.  An automatic system picks up the cases and determines whether they are subject to review.  If they are, it has some mechanism to prioritize them and distribute the case to a case worker.

The procedures are as follows:

EB I-485 Cases

The procedure may be used by AILA-member  attorneys who see that a visa number is available to his or her client according to the Visa Bulletin.  The inquiry can be submitted as soon as the Visa Bulletin is published.

1. Identify all clients on one email whose visa numbers will be available according to the visa bulletin.
2. Send an email to streamline.tsc@dhs.gov
3. On the subject line, write “EB I-485/”MM” (Example:EB I-485/OCT)
4. In the body of the email, provide A numbers only. The system will use these A numbers to pull cases and distribute them to floor case workers.
5. If the applicant has more than one A number, type both separated by a “/” (Example: A111222333/A444555666)
6. If there are multiple family members, type them all on the same line separated by commas (Example: A111222333, A222333444, A444555666)

I-140 Cases

Attorneys who are AILA members can use this procedure when the filing date is prior to the processing time date for the I-140 as published on the USCIS website.

1. Identify all clients on one email whose filing dates are prior to the published timeframe
2. Send an email to streamline.tsc@dhs.gov
3. On the subject line write “I-140″
4. In the body of the email, provide A numbers only. If there is no A number on the receipt, provide the receipt number only.  (For stand-alone I-140s where the beneficiary is out of the U.S. and will be applying for a visa at the consulate).  Do not provide any additional information as the text of the email will be used to automatically check the submitted cases and pull the cases for distribution to floor case workers.
5. If the applicant has more than one A number, type both separated by a “/” (Example: A111222333/A444555666)

Full text of these instructions is available here.

We are AILA members and we will be happy to assist you in moving your case along using the new TSC streamline procedure.  Please contact us.