Representative of the American Immigration Lawyers Association held a teleconference with high ranking INS officials to review various issues of concern to the immigrant community. The following are highlights of some of the meetings.
AILA/INS Headquarters – December 11, 1997
- 245i
The first issue addressed was the recently passed Section 245i phase-out provisions. AILA asked whether INS planned to issue regulations relating to the phase-out before the January 14th cutoff. The INS did not say it would issue regulations, but it has issued one preliminary advisory memo and is expected to issue further guidance. Of particular concern is whether the INS will accept skeletal filings of visa applications in order to meet the deadline and, if so, what is adequate for such a filing. The INS did say that skeletal filings received in November when Congress was first thought to be setting a filing deadline would continue to be adjudicated rather than sent back.
The INS confirmed that DV lottery winners selected in the DV-99 lottery will not be eligible for 245i filings.
AILA asked INS what its plans are for including family members as derivative beneficiaries in 245i cases filed by a principal applicant before January 14th. The INS was noncommittal and would only say that it is considering the issue.
- Affidavits of Support
The INS confirmed that the new Affidavit of Support rules do not apply to cases filed before December 18th even if an applicant is interviewed later.
- DV-98 winners
AILA urged INS headquarters to set a policy to require all district offices to allow for expedited processing in DV-98 cases. The applications must be finished by September 30, 1998 or the applications will become voided. The INS headquarters would only state that it encourages District Offices to expedite DV cases where expediting would not result in a serious disruption of the local office’s operations. The INS headquarters also agreed to contact local INS offices where there is a problem.
- Service Center Backlogs
AILA complained about the growing backlog at the INS Service Centers in handling a variety of applications. AILA asked the various INS to consider allowing I-129 petitioners (such as for an H-1B or L-1 visas) to be filed at any INS service center. Surprisingly, the INS said it is considering the request.
- Immediate relatives of asylees
The INS clarified new procedures for approved asylum holders to petition for immediate relatives to join them in the US. All I-730 applications for immediate relatives of asylees must now be filed with the INS Nebraska Service Center. Applicants attempting to file at local offices are being informed to file in Nebraska.
- Lost I-797 receipts
AILA raised a problem regarding fee receipts for adjustment of status applications filed with INS service centers. Occasionally, fee receipts are lost in the mail and applicants are not able to take the receipt to the local INS district office to apply for an advanced parole document or an employment authorization document. Some of the INS service centers are taking the position that they will not issue duplicate fee receipt notices. INS headquarters stated they will discuss the matter with the service centers and report back at the next AILA/INS meeting.
- J-1/J-2 change of status
AILA asked INS to confirm that it has changed its longstanding policy of permitting changes of status from J-1 to J-2 and vice versa. INS allowed such changes notwithstanding Section 212(e) as it was considered for those purposes to be the same visa category. AILA suggested that given the longstanding history of the policy, INS should have sent the issue out for notice and comment. The INS confirmed that it has reversed policy and that it will issue a formal policy memorandum in the near future.
- Backlogged Chinese and Indian employment cases
AILA asked the INS to clarify how INS regional service centers are handling cases of Indian and Chinese nationals whose petitions have been approved but who do not have visas available due to the retrogression of numbers in the employment-based categories for nationals of the two countries. The INS stated that it will address the issue in the next AILA/INS teleconference.
- Health Care Workers
The INS indicated that it is still several months away from issuing new regulations covering health care worker certification as called for under the 1996 Immigration Act. The INS did say that it intends to continue to waive Section 212(d)(3), grounds of admissibility in the case of non-immigrant health care workers. Permanent residency petitions will continue to be held without decision until the new regulations are issued.
- Simultaneous filing of adjustment applications and J-1 212(e) waivers
Previously, AILA asked the INS to permit concurrent filing of an I-485 adjustment of status application and an I-612 application to waive the J-1 home residency requirement. The INS has agreed to a portion of this request. Once the USIA has issued a favorable recommendation for a waiver, the INS will allow an I-612 and an I-485 to be filed together. The INS examiner will first have to decide on the waiver and will then make a decision on adjustment of status. One important exception – the INS will NOT accept concurrent filing in waiver cases based on exceptional hardship. The INS will issue field instructions confirming this new policy.
- Advance parole and the new immigration bars.
AILA pointed out that some INS district offices are misinterpreting an earlier INS headquarters memorandum regarding the availability of advance parole in cases where a person has been out of status for more than 180 days. The INS memo instructed officers to deny advance parole applications in such cases because the applicant could not be admitted under the new three and ten year bars. Some INS offices have been denying applications where there has been ANY time out of status. INS headquarters agreed this was not proper and agreed to issue a new memorandum clarifying the point.
AILA/California Service Center – December 4, 1997
- Filing of I-485s with I-131s and I-765s
The CSC said the most common filing error it sees is when lawyers file I-485 adjustment of status applications separate from I-131 advance parole and I-765 employment authorization documents.
- Adjustment of status processing times
The CSC states that receipts for applications are normally generated within six days and should be received by applicants within 9 days of the application being properly filed.
Employment authorization documents are normally received by applicants in 45-50 calendar days.
Advance parole applications should be received by applicants in 21 to 30 days.
Adjustment approvals should be received by applicants in 150 to 180 days. A task force has recently been put on adjustment applications to attempt to get processing down to less than 150 days.
- Fingerprints
The CSC stated that the most common causes for rejection of fingerprints are incomplete masthead information, discrepancies between the signature of the applicant and the printed name of the applicant, and fingerprints received in unsealed envelopes.
Retrogression of Chinese and Indian employment-based cases
The CSC indicated that in cases already filed for Indians and Chinese where cutoff dates have retrogressed, those cases will be held until a visa number become available. Employment authorizations and advance parole approvals and extensions are still available. New cases where the priority date is not current will not be accepted.
- Production of green cards
The national Immigration Card Facility in Texas is closing at the beginning of 1998 and the CSC will begin printing its own green cards. Applications approved before October 1, 1997 will continue to have the cards produced in Texas. Applications after that date are being processed at the INS Vermont Service Center until the CSC’s card production equipment comes on line in January.
AILA/Vermont Service Center – 10/06/97
- Fingerprints
The VSC will return twice rejected fingerprints to the local district office for handling.
- Adjustment of status
Cases are being handled in 120 days. The VSC expects processing times to decline as new fingerprint procedures take effect.
Earlier filed cases may actually take longer to approve then more recently filed cases because the older cases are handled using the old fingerprint process.
I-765 and I-131 applications are being approved in about 30 to 60 days.
- L-1 cases
The VSC noted that it looks more closely at L-1 petitions filed on behalf of nationals of the People’s Republic of China because of a number of State Department reports that there is a high incidence of fraud in these petitions.
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