On September 30, 1997, several top management officials of the Immigration and Naturalization Service met with a group of members of the American Immigration Lawyers Association (“AILA”) to discuss a variety of issues relating to the work of the INS.
The meeting again highlights the effectiveness of AILA in addressing issues of practical concern to its members and its members’ clients.
Unresponsiveness of Local INS Offices to Inquiries
AILA raised the point that it is becoming increasingly difficult or impossible to get any information from local INS district offices on pending applications. Telephone calls and letters are going unanswered and some AILA members are reporting that certain local offices have actually issued moratoriums on responding to inquiries in certain kinds of cases, such as naturalization applications and adjustment of status petitions. The INS responded to this query by stating that the increasing numbers of filings in these types of cases prevents it from issuing a mandate to local offices to answer questions. It did state that it is willing to discuss the problem of non-responsiveness with local offices where the problem is particularly severe.
H-1B count
AILA raised the question of problems in the INS’ count of H-1B applicants toward the annual cap of 65,000 in that nonimmigrant visa category. This past August, the annual cap for Fiscal Year 1998 was reached and numbers were borrowed from Fiscal Year 1998 in order to minimize the disruption. The INS admitted that deficiencies in its CLAIMS software program resulted in counting problems. It has stated that it has made changes to the software which will allow adjudicators to note whether a petition being approved should or should not be counted toward the cap. The INS did note, however, that they would be unable to add back numbers to the cap when an applicant is a “no-show” at a US consulate to receive the visa and the employer does not report this to the INS.
Advance Parole Applications For Employment-Based Permanent Residency Applicants
The INS indicated that it is in the process of drafting regulations that would eliminate the need for employment-based permanent residency applicants holding E, H and L to receive advance parole documents as long as they keep their underlying visas valid.
Direct Filing of Family-Based Adjustment of Status Applicants
The INS indicated that after the nationwide implementation of direct filing of N-400 naturalization applications at the four INS regional service centers, it intends to extend the direct filing program to the filing of family-based I-485 adjustment of status applications. The INS indicated that with respect to waiving interviews in clearly bona fide immediate relative spouse cases, it has no plans to consider such a policy.
Health Care Worker Regulations
The INS announced plans to send the long-awaited health care worker regulations called for under Section 343 of last year’s immigration law to the Department of Justice. The INS stated that the regulations would be sent in early October of this year, though whether this actually happened is not clear. After this step, the Office of Management and Budget would then need to check for approval with all affected agencies. According to INS, the draft regulation will provide that possessing an unrestricted state license in the occupation will NOT satisfy the certification requirements. They will also provide that every applicant prove English competency even where the applicant comes from country where English is the principal language (something that should prove highly insulting to nationals of countries where English is the mother tongue). The INS noted that the Canadian government has stated that Section 343 as it relates to Canadian nurses appears to violate NAFTA. The INS did not state how it will deal with this objection.
Special Procedures for Large Corporations Filing I-129s and I-140s
AILA was advised that large corporations may negotiate with a specific INS Service Center to assume processing of all I-129s and I-140s filed nationwide by the corporation. This type of arrangement could simplify matters for corporations and, hopefully, lead to more consistent processing of cases. To take advantage of this, corporations must make the request in writing to the Service Center Director. The corporations can get out of these agreements at any time upon giving notice to the Service Centers. The INS does note that corporations requesting this should be sizeable, have multiple locations and submit a significant number of petitions.
Green Card Production
The INS plans to shutdown the Immigration Card Facility in Texas within six months and the shift of this process to the four INS Service Centers. AILA raised the question of allowing adjustment of status applicants to submit a Form I-89 with their I-485 application in order to allow the Service Centers to immediately produce their cards without having to send a notice to the applicant directing him or her to complete ADIT processing at the local INS office. Currently, cards can take four to six months to reach new permanent residents. The INS agreed that this would be a more efficient use of INS resources and it is taking the matter under review.\
Chinese L-1 Cases
AILA stated that many of its members are reporting that in many Chinese new office L-1 applications, applicants are being requested to present extensive additional documentation that would normally only be requested at the time of applying for an extension. As these new offices are, by definition, only in the infancy stage of operating or have not yet begun operating, AILA questioned whether the documentation requests are reasonable. Further, some INS District Offices are reportedly taking the position that all Chinese L-1 new office cases are to be investigated and this can add as much as a year to the processing time. The INS only stated in response to this that it would discuss specific cases with the Service Centers or District Offices if there are indications of inappropriate requests for further evidence. INS requested AILA to provide specific examples of such abuses.
I-140 Petitions at the Nebraska Service Center
AILA noted that the Nebraska Service Center is requiring in labor certification-based I-140 cases that if an employer states an educational degree requirement for a job it must state in Part A of the Labor Certification Application that the degree requirement can be met with an equivalent (e.g. “Master’s Degree or foreign equivalent”) and that failing to use this language even if the applicant submits a foreign educational credentials evaluation. The INS agreed this policy is incorrect and such a statement regarding a foreign degree equivalent is not required.
Concurrent Filing of I-612 and I-485 Applications in J-1 Cases
AILA asked the INS to consider a policy of allowing an applicant for a J-1 home residency waiver to file the I-612 waiver application with the INS at the same time as filing for adjustment of status to permanent residency on form I-485 IF the USIA has already issued a letter approving the waiver request. This could save critical time in many J-1 waiver cases. The INS will consider the issue and report back to AILA at the next meeting.
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