Susie
05-11-2008, 03:58 PM
http://www.uscis.gov/files/nativedocuments/AILA_2Apr08.pdf
April 2, 2008 USCIS – AILA Liaison Committee Agenda FINAL
Page 1 of 19
I.
Introduction
AILA acknowledges USCIS’ recent change in policy announced in the publication of the memorandum permitting the approval of I-485, I-601, I-687 and I-698 applications where an FBI name check has been pending for more than 180 days.1AILA believes the change in policy is a positive step in addressing the FBI name check backlog crisis for pending applicants for adjustment of status.
AILA also wishes to acknowledge the efforts of USCIS to address the serious processing delays caused by the surge in naturalization filings this past summer. AILA is encouraged by the details of the Service’s response plan, namely resources devoted to staffing, technology, and process improvements, as detailed by USCIS Director Gonzalez in his testimony on January 17, 2008, before the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. AILA is committed to working with USCIS to assist in the implementation of the response plan and to providing suggestions and feedback for further Service improvements. To this end, AILA urges USCIS to expand the February 4, 2008, Aytes Memorandum to permit the final adjudication of I-751 Petitions to Remove the Conditions on Residence and N-400 Naturalization applications where an FBI name check has been pending for more than 180 days.
AILA looks forward to maintaining an ongoing dialogue with USCIS on these issues.
II.
Specific Processing/Procedural Issues
1.
Extending Duration of Employment Authorization Documents (EADs) Beyond One Year
AILA appreciates USCIS’ willingness to investigate multi-year work authorization for adjustment of status applicants. AILA understands USCIS hopes to issue a two-year card to those applicants affected by employment based visa retrogression. Please update us on plans to issue a multi-year EAD as USCIS has discussed in the recent past and as is authorized by the regulations at 8 C.F.R § 274a.12(a).
Response: A multi-year EAD has been proposed for applicants affected by visa regression. This employment validity extension is being considered as part of an initiative to issue a combination “employment and advance parole” authorization. The proposal is under review by USCIS program offices.
2.
Extending Duration of Advance Parole (AP) Documents and Extending AP Issued Forms I-94
AILA also appreciates USCIS’ willingness to investigate multi-year travel authorization for adjustment of status applicants. AILA understands that USCIS is reviewing a number of options including issuing a multi-year combined EAD/AP document similar to the document provided to legalization applicants in the past. Please update us on discussions regarding the feasibility of issuing a multi-year advance parole document, as well as discussions regarding the feasibility of issuing a combined EAD/Advance Parole document.
Response: A standard one-year advance parole is under discussion for adjustment applicants. A multi-year standard parole has been proposed for applicants affected by visa regression. In addition we are testing a combination document to serve as both an EAD and advance parole where both have been requested and are appropriate.
3.
Extending an AP issued Form I-94
a. AILA once again asks USCIS to provide a mechanism to extend an advance parole Form I-94 issued at the time of entry. Currently, pending applicants for adjustment who use a valid advance parole to re-enter the United States are issued an I-94 for a one year period. Under recently-adopted regulations of the DHS implementing REAL ID, aliens may not be able to obtain or renew REAL ID compliant state driver’s licenses and non-drivers licenses without providing an unexpired Form I-94 as proof of maintenance of status.2
Response: USCIS is not weighing presently any initiatives to extend the I-94 validity period. Under the Federal Register RIN 1601-AA37, “Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,” the document list provided in the proposed regulation and adopted under this final rule relates to demonstrating identity only, and not lawful status in the United States. The DHS agreed with those who suggested in their comments that any document verifiable by SAVE should be acceptable for proving lawful status, and the final regulation provides the same. Such documents may include the Forms I-797 and I-94, which provide sufficient information for a State Department of Motor Vehicles to check SAVE.
1 Memorandum from Michael Aytes, Associate Director, Domestic Operations, Revised National Security Adjudication and Reporting Requirements, HQ 70/23 & 70/28.1 (February 4, 2008)(“Aytes Memorandum”)
2 See, e.g., 6 C.F.R. § 37.11(c)(vi) and (g)(2); 73 Fed. Reg. 5272, et. seq. (Jan. 29, 2008).
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b. AILA requests that USCIS confirm in a policy memorandum that an individual whose application for adjustment of status remains pending is lawfully present in the United States regardless of the fact that the individuals advance parole related Form I-94 may have expired.
Response: No unlawful presence begins to accrue upon the expiration of an I-94 where the subject of the I-94 has an I-485 properly pending before USCIS.
We will review whether your concerns warrant clarification in the form of a policy memorandum.
4.
Cap Issues Relating to Chilean/Singaporean Nationals
AILA respectfully requests that USCIS confirm that a Chilean or Singaporean national who has been issued an H-1B1 visa or has been approved for change to H-1B1 status in the United States has been counted against the overall H-1B cap for that fiscal year. A January 8, 2004 memorandum from William Yates memo confirms this but it does not instruct on the mechanics of capturing that H-1B number.3
Please confirm that a subsequent H-1B petition on behalf of an individual who has held H-1B1 status is cap exempt, as that person has already been counted against the cap. This question was raised in AILA’s fall 2006 liaison meeting with USCIS, and USCIS indicated it would put out guidance on this issue. To date, no formal guidance has been issued.
Response: We appreciate your request and will take this matter under advisement.
5.
Diversity Visa (DV) Lottery: 245 Application Processing
On January 19, 1999, legacy INS issued a memorandum in which it permitted applications for adjustment of status under the DV program to be filed 90 days in advance of an applicant’s rank cut-off.4 The Pearson memorandum was issued in response to notification from the Department of State (DOS) that the Visa Bulletin would provide cut-off numbers for the DV category 90 days in advance. The memorandum instructed all offices to accept DV related adjustment of status applications for processing “any time during the 90-day period preceding the cut-off provided in the Visa Bulletin.” The current version of the DOS’ Visa Bulletin lists lottery rank number availability only for the current and following month. As such this mechanism now provides a DV applicant 75 days advance notice, 15 days short of the previously afforded 90 day period.
AILA has received reports from members that the advance filing policy articulated in the Pearson memorandum is not being followed by the Chicago lockbox resulting in rejection of DV adjustment of status applications. AILA respectfully requests that USCIS confirm that the advance filing procedure outlined in the 1999 Pearson memorandum is still in place and requests that HQ advise the Chicago Lockbox accordingly.
Response: An alien may apply for adjustment when a visa number is immediately available. Under the Pearson memorandum, USCIS deemed an IV number to be immediately available based on the publication of a rank order number. Therefore the date of publication by DOS of the visa bulletin controls the date on which USCIS will begin accepting adjustment applications made under the DV program for a given fiscal year. When the above memorandum was published in 1999 the visa bulletin was be published 3 months in advance. The memo has been overtaken by events in that DOS changed publication of the visa bulletin publication to 2 months in advance. USCIS is constrained by DOS's visa bulletin publication policy.
6.
Increasing K-3 Processing Efficiency
AILA respectfully requests USCIS to review and revise K-3 processing procedures to permanently permit concurrent filing of the I-130 and I-129F petitions and to permit a beneficiary to move forward with a K-3 visa application in those cases where the I-130 petition is approved prior to adjudication of the I-129F petition. Please see the attached Addendum I to this agenda for AILA’s recommendations on this issue.
3 Memorandum from William R. Yates by Janis Sposato, Associate Director of Operations, USCIS, “Lifting of Numerical Cap on Mexican NAFTA Nonimmigrant Professionals (TN) and Free Trade Agreements with Singapore and Chile,” (January 4, 2004), states "The annual 6800 H-1B1 numerical cap will be counted against the H 1B numerical cap… In addition to initial admissions at ports-of-entries, initial changes of nonimmigrant status to H-1B1 classification will be counted towards this overall annual limitation.” http://www.uscis.gov/files/pressrelease/NAFTA010804.pdf
4 Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, Acceptance of DV-related I-485 Applications During 90-day Period Preceding Cut-Off Number in the Visa Bulletin, HQ 70/23.1 (January 19, 1999)(“Pearson Memorandum”)
April 2, 2008 USCIS – AILA Liaison Committee Agenda FINAL
Response: USCIS appreciates AILA’s recommendations regarding these K-3 issues and will take them into account as we review current policies and procedures.
7. Use of Form I-102 to Request Action on a Form I-94 Issued by CBP
Historically individuals filed Form I-102 with USCIS to replace a lost I-94 card issued by CBP at entry. The advisory contained in the updated instructions to Form I-102 however states:
Do not use this form to request an action on a Form I-94 issued by the U.S. Customs and Border Protection (CBP). If you are seeking a new Form I-94 based on a Form I-94 issued at a port-of-entry or otherwise by CBP, you should contact the nearest CBP office or port-of-entry and inquire about their procedures, or visit the CBP's website atwww.cbp.gov.
Based on the wording of the advisory it appears that filing Form I-102 with USCIS is no longer a viable option to replace a CBP issued Form I-94.
a. AILA requests clarification on the new instructions and advisory. Specifically, please advise whether USCIS will still accept and issue replacements for lost I-94s that were issued upon entry and if not, the reasoning behind the change in procedure. Please note that CBP has indicated to AILA that it is only able to replace cards containing CBP-created errors.
Response: USCIS will accept and issue replacements for lost I-94s that were issued upon entry, and will revise the Form I-102 instructions.
b. If USCIS will not replace a CBP-issued I-94 card and will not accept an I-102 filed with an I-485 where proof of inspection and admission is required, will the Service accept as proof of valid entry for adjustment of status purposes a printout from CBP, obtained through FOIA, showing time and date of entry?
Response: USCIS will replace a Form I-94 issued by the CBP except where requests seek correction of determinations made by CBP that the holder may perceive as an error.
c. The special instructions listed on USCIS’ website and included in the instructions to Form I-102 indicate that applicants should submit applications to request a correction to an inaccurate Form I-94, I-95 or I-20ID at the local office having jurisdiction over the alien’s temporary residence. Please describe what if any instructions have been provided to USCIS Field Offices for accepting and processing Form I-102.
Response: The above instructions are incorrect and will be revised.
d. The Form I-102 instructions also indicate that the form I-102 can be used to correct an I-94 for errors made either by USCIS or the applicant. AILA members have reported rejection of Form I-102 for correction of applicant errors. Please confirm that Form I-102 can be used to correct I-94 errors made either by the Service or by an applicant.
Response: The I-102 may be used to correct I-94 errors made by either the applicant or USCIS. Please note, however, that any request to correct an I-94 error made by an applicant must be accompanied by the correct filing fee. A request to correct an I-94 error made by USCIS must be accompanied by supporting evidence.
8. Filing Form I-130 Petitions for Beneficiaries in Removal Proceedings
On February 19, 2008, USCIS announced that effective immediately all petitioners filing stand alone Form I-130s must file their petitions with the Chicago Lockbox instead of a USCIS Service Center. The new instructions do not provide a separate procedure for filing I-130 Petitions for those beneficiaries currently in removal proceedings. AILA urges USCIS to create a mechanism for I-130 Petitions filed on behalf of beneficiaries in removal proceedings to be flagged and separated in the filing process for timely adjudication. Please find AILA’s arguments and recommendations on this issue in the attached Addendum II to the agenda.
Response: The recent I-130 filing instructions only changed the filing location of stand-alone filings from the Service Center to the CLB. These revised filing instructions did not alter any pre-existing filing procedures for beneficiaries in removal proceedings.
Due to a number of practical and operational considerations, it is not possible for USCIS to adopt AILA’s suggestion at this time. However, we will consider whether the petition should be modified in order to flag removal proceedings.
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April 2, 2008 USCIS – AILA Liaison Committee Agenda FINAL
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9. Standard Operating Procedure for Filing I-130 Petitions for Beneficiaries in Removal Proceedings with Final Orders of Removal
AILA requests that USCIS clarify the standard operating procedure for I-130 petitions for those individuals with final orders of removal. Typically I-130 petitions filed on behalf of individuals with final orders of removal are forwarded to USCIS Field Offices for interview. AILA has received reports from members that individuals with final orders of removal are routinely detained at the time of their I-130 interview. AILA understands USCIS position that it has a duty to carry out the immigration laws including not turning a blind eye to those applicants with final orders of removal. The current policy at some Field Offices, however, is having a chilling effect on those individuals who would otherwise be able to apply for forms of relief and reopen their final orders of removal. In many jurisdictions it is difficult to have a motion to reopen adjudicated without an approved I-130 petition. AILA further understands that a higher burden is required to be shown to be granted a benefit when an individual has a final order of removal. In the past, the higher burden was able to be demonstrated via paper at the request of the service center. In light of the new filing procedures for I-130's what will be the standard operating procedures for these scenarios?
Response: This is currently under review at the HQ level. Further instructions will be forthcoming.
10.
Expansion of Premium Processing
a.
Is there any update on when USCIS will reinstate premium processing for I-140 and R-1 petitions?
Response: On January 8, 2007, USCIS issued a press release (that is available on our website) announcing that the suspension of premium processing service for religious worker (R-1) petitions will extend at least until July 8, 2008.
b.
If USCIS is not able to reinstate premium processing of I-140 petitions in the near future AILA urges the Service to permit premium processing for those beneficiaries who are able to demonstrate the need for an I-140 approval to remain in H-1B status under the Service’s current reading of AC21 §104(c). AILA recommends permitting the acceptance for premium processing the I-140 petitions for those beneficiaries that will time out of H-1B status within 120 days and are eligible for an extension of stay under AC21 §104(c). AILA urges USCIS to permit premium processing for this discrete group of individuals given the current processing backlogs and the dire consequences to those beneficiaries who would be eligible for extensions of H-1B stay under AC21 §104(c) but are unable to have their I-140 petitions adjudicated timely.
Response: USCIS is reviewing various options related to the restoration of premium processing for different I-140 petitions-types. The USCIS must weigh the ramifications of favoring one I-140 petition-type over another for expedited service.
Our service centers are working hard to reduce the current backlog of I-140 petitions and training additional staff to adjudicate them. We plan to resume premium processing for this application type once we feel confident that our service centers will be able to deliver the kind of adjudication and customer service required by the program.
c.
Is USCIS currently contemplating including premium processing of I-140 petitions filed under the EB-1-3 preference category?
Response: USCIS is not planning presently to extend premium processing beyond any previously designated categories at this time.
d.
AILA respectfully renews its request that USCIS expand the premium processing program to include E-3 Australian and H-1B1 Singaporean and Chilean and nonimmigrant visa categories. Although direct filing of E-3 and H-1B1 visa applications is permitted at US Embassies and Consulates abroad, it is not always feasible for petitioners and beneficiaries to make visa appointments in a timely and cost-effective manner for initial grants or for extensions of stay of E-3 or H-1B1 status. The unavailability of premium processing is particularly acute for E-3 nonimmigrants, as there is currently no provision for an E-3 nonimmigrant to continue to be employed by a petitioner once a timely filed E-3 extension of stay petition has been filed.5
5 The relevant regulation contained at 8 CFR 274a.12(b)(20) does not include E-3 nonimmigrants in the class of individuals permitted to continue to be employed once a timely extension of stay petition has been filed with USCIS and the current period of stay has expired.
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Response: We understand AILA’s desire to expand premium processing to various other nonimmigrant classifications. As we reduce processing times and eliminate the temporary backlogs of applications created by last year’s surge, we hope to expand premium processing, and will consider proposing regulations where necessary to allow for such expansion.
11.
Request for Clarification of Various Issues in the I-9 Handbook
a. Good Faith Defense and Compliance
In 1996 Congress amended the INA to provide a good faith defense, despite a technical or procedural failure, if there was a good faith attempt to comply with the I-9 verification rules. See INA § 274A(b)(6), as added by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IRAIRA), Pub. L. No. 104-208, § 411, 110 Stat. 3009. The newly revised Handbook for Employers does not explain what “technical or procedural” I-9 failures are; nor does it explain “[A] good faith attempt to comply”.6 The public has relied on the March 6, 1997, legacy INS Interim Guidelines, for guidance on these compliance issues. May the public continue to rely on the Interim Guidelines for compliance guidance until a final rule is published?
Response: We appreciate your concerns and are in the process of reviewing this matter in depth.
b. The 240 Day Rule
Aliens in certain nonimmigrant categories are authorized to continue working for the same employer for a period not to exceed 240 days after the expiration of their current period of stay, as long as a timely filed extension of stay application is pending with the USCIS. 8 C.F.R. § 274a.12(b)(20). Under this rule employment must cease upon notice of a denial decision. For I-9 reverification purposes, the employee in this case is employment authorized but the I-9 form contains no provision for this form of authorization. Which employer reverification procedures would suffice?
Response: We appreciate your concerns and are in the process of reviewing this matter in depth.
c.
H-1B Portability
Section 105 of the American Competitiveness in the 21st Century Act of 2000 (AC21), allows employers to hire employees who were previously issued an H-1B visa or change of status, who subsequent to a lawful admission have not been employed without authorization by filing a “nonfrivolous” H-1B transfer petition with the USCIS before the expiration of the alien’s previous authorized stay.7 The employment authorization continues until the petition is adjudicated and must cease if the petition is denied. Please advise whether the USCIS-issued receipt notice qualifies as a List C employment authorization document documents for I-9 verification or reverification purposes.
Response: We appreciate your concerns and are in the process of reviewing this matter in depth.
III.
General Processing/Procedural Issues
April 2, 2008 USCIS – AILA Liaison Committee Agenda FINAL
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I.
Introduction
AILA acknowledges USCIS’ recent change in policy announced in the publication of the memorandum permitting the approval of I-485, I-601, I-687 and I-698 applications where an FBI name check has been pending for more than 180 days.1AILA believes the change in policy is a positive step in addressing the FBI name check backlog crisis for pending applicants for adjustment of status.
AILA also wishes to acknowledge the efforts of USCIS to address the serious processing delays caused by the surge in naturalization filings this past summer. AILA is encouraged by the details of the Service’s response plan, namely resources devoted to staffing, technology, and process improvements, as detailed by USCIS Director Gonzalez in his testimony on January 17, 2008, before the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. AILA is committed to working with USCIS to assist in the implementation of the response plan and to providing suggestions and feedback for further Service improvements. To this end, AILA urges USCIS to expand the February 4, 2008, Aytes Memorandum to permit the final adjudication of I-751 Petitions to Remove the Conditions on Residence and N-400 Naturalization applications where an FBI name check has been pending for more than 180 days.
AILA looks forward to maintaining an ongoing dialogue with USCIS on these issues.
II.
Specific Processing/Procedural Issues
1.
Extending Duration of Employment Authorization Documents (EADs) Beyond One Year
AILA appreciates USCIS’ willingness to investigate multi-year work authorization for adjustment of status applicants. AILA understands USCIS hopes to issue a two-year card to those applicants affected by employment based visa retrogression. Please update us on plans to issue a multi-year EAD as USCIS has discussed in the recent past and as is authorized by the regulations at 8 C.F.R § 274a.12(a).
Response: A multi-year EAD has been proposed for applicants affected by visa regression. This employment validity extension is being considered as part of an initiative to issue a combination “employment and advance parole” authorization. The proposal is under review by USCIS program offices.
2.
Extending Duration of Advance Parole (AP) Documents and Extending AP Issued Forms I-94
AILA also appreciates USCIS’ willingness to investigate multi-year travel authorization for adjustment of status applicants. AILA understands that USCIS is reviewing a number of options including issuing a multi-year combined EAD/AP document similar to the document provided to legalization applicants in the past. Please update us on discussions regarding the feasibility of issuing a multi-year advance parole document, as well as discussions regarding the feasibility of issuing a combined EAD/Advance Parole document.
Response: A standard one-year advance parole is under discussion for adjustment applicants. A multi-year standard parole has been proposed for applicants affected by visa regression. In addition we are testing a combination document to serve as both an EAD and advance parole where both have been requested and are appropriate.
3.
Extending an AP issued Form I-94
a. AILA once again asks USCIS to provide a mechanism to extend an advance parole Form I-94 issued at the time of entry. Currently, pending applicants for adjustment who use a valid advance parole to re-enter the United States are issued an I-94 for a one year period. Under recently-adopted regulations of the DHS implementing REAL ID, aliens may not be able to obtain or renew REAL ID compliant state driver’s licenses and non-drivers licenses without providing an unexpired Form I-94 as proof of maintenance of status.2
Response: USCIS is not weighing presently any initiatives to extend the I-94 validity period. Under the Federal Register RIN 1601-AA37, “Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,” the document list provided in the proposed regulation and adopted under this final rule relates to demonstrating identity only, and not lawful status in the United States. The DHS agreed with those who suggested in their comments that any document verifiable by SAVE should be acceptable for proving lawful status, and the final regulation provides the same. Such documents may include the Forms I-797 and I-94, which provide sufficient information for a State Department of Motor Vehicles to check SAVE.
1 Memorandum from Michael Aytes, Associate Director, Domestic Operations, Revised National Security Adjudication and Reporting Requirements, HQ 70/23 & 70/28.1 (February 4, 2008)(“Aytes Memorandum”)
2 See, e.g., 6 C.F.R. § 37.11(c)(vi) and (g)(2); 73 Fed. Reg. 5272, et. seq. (Jan. 29, 2008).
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b. AILA requests that USCIS confirm in a policy memorandum that an individual whose application for adjustment of status remains pending is lawfully present in the United States regardless of the fact that the individuals advance parole related Form I-94 may have expired.
Response: No unlawful presence begins to accrue upon the expiration of an I-94 where the subject of the I-94 has an I-485 properly pending before USCIS.
We will review whether your concerns warrant clarification in the form of a policy memorandum.
4.
Cap Issues Relating to Chilean/Singaporean Nationals
AILA respectfully requests that USCIS confirm that a Chilean or Singaporean national who has been issued an H-1B1 visa or has been approved for change to H-1B1 status in the United States has been counted against the overall H-1B cap for that fiscal year. A January 8, 2004 memorandum from William Yates memo confirms this but it does not instruct on the mechanics of capturing that H-1B number.3
Please confirm that a subsequent H-1B petition on behalf of an individual who has held H-1B1 status is cap exempt, as that person has already been counted against the cap. This question was raised in AILA’s fall 2006 liaison meeting with USCIS, and USCIS indicated it would put out guidance on this issue. To date, no formal guidance has been issued.
Response: We appreciate your request and will take this matter under advisement.
5.
Diversity Visa (DV) Lottery: 245 Application Processing
On January 19, 1999, legacy INS issued a memorandum in which it permitted applications for adjustment of status under the DV program to be filed 90 days in advance of an applicant’s rank cut-off.4 The Pearson memorandum was issued in response to notification from the Department of State (DOS) that the Visa Bulletin would provide cut-off numbers for the DV category 90 days in advance. The memorandum instructed all offices to accept DV related adjustment of status applications for processing “any time during the 90-day period preceding the cut-off provided in the Visa Bulletin.” The current version of the DOS’ Visa Bulletin lists lottery rank number availability only for the current and following month. As such this mechanism now provides a DV applicant 75 days advance notice, 15 days short of the previously afforded 90 day period.
AILA has received reports from members that the advance filing policy articulated in the Pearson memorandum is not being followed by the Chicago lockbox resulting in rejection of DV adjustment of status applications. AILA respectfully requests that USCIS confirm that the advance filing procedure outlined in the 1999 Pearson memorandum is still in place and requests that HQ advise the Chicago Lockbox accordingly.
Response: An alien may apply for adjustment when a visa number is immediately available. Under the Pearson memorandum, USCIS deemed an IV number to be immediately available based on the publication of a rank order number. Therefore the date of publication by DOS of the visa bulletin controls the date on which USCIS will begin accepting adjustment applications made under the DV program for a given fiscal year. When the above memorandum was published in 1999 the visa bulletin was be published 3 months in advance. The memo has been overtaken by events in that DOS changed publication of the visa bulletin publication to 2 months in advance. USCIS is constrained by DOS's visa bulletin publication policy.
6.
Increasing K-3 Processing Efficiency
AILA respectfully requests USCIS to review and revise K-3 processing procedures to permanently permit concurrent filing of the I-130 and I-129F petitions and to permit a beneficiary to move forward with a K-3 visa application in those cases where the I-130 petition is approved prior to adjudication of the I-129F petition. Please see the attached Addendum I to this agenda for AILA’s recommendations on this issue.
3 Memorandum from William R. Yates by Janis Sposato, Associate Director of Operations, USCIS, “Lifting of Numerical Cap on Mexican NAFTA Nonimmigrant Professionals (TN) and Free Trade Agreements with Singapore and Chile,” (January 4, 2004), states "The annual 6800 H-1B1 numerical cap will be counted against the H 1B numerical cap… In addition to initial admissions at ports-of-entries, initial changes of nonimmigrant status to H-1B1 classification will be counted towards this overall annual limitation.” http://www.uscis.gov/files/pressrelease/NAFTA010804.pdf
4 Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, Acceptance of DV-related I-485 Applications During 90-day Period Preceding Cut-Off Number in the Visa Bulletin, HQ 70/23.1 (January 19, 1999)(“Pearson Memorandum”)
April 2, 2008 USCIS – AILA Liaison Committee Agenda FINAL
Response: USCIS appreciates AILA’s recommendations regarding these K-3 issues and will take them into account as we review current policies and procedures.
7. Use of Form I-102 to Request Action on a Form I-94 Issued by CBP
Historically individuals filed Form I-102 with USCIS to replace a lost I-94 card issued by CBP at entry. The advisory contained in the updated instructions to Form I-102 however states:
Do not use this form to request an action on a Form I-94 issued by the U.S. Customs and Border Protection (CBP). If you are seeking a new Form I-94 based on a Form I-94 issued at a port-of-entry or otherwise by CBP, you should contact the nearest CBP office or port-of-entry and inquire about their procedures, or visit the CBP's website atwww.cbp.gov.
Based on the wording of the advisory it appears that filing Form I-102 with USCIS is no longer a viable option to replace a CBP issued Form I-94.
a. AILA requests clarification on the new instructions and advisory. Specifically, please advise whether USCIS will still accept and issue replacements for lost I-94s that were issued upon entry and if not, the reasoning behind the change in procedure. Please note that CBP has indicated to AILA that it is only able to replace cards containing CBP-created errors.
Response: USCIS will accept and issue replacements for lost I-94s that were issued upon entry, and will revise the Form I-102 instructions.
b. If USCIS will not replace a CBP-issued I-94 card and will not accept an I-102 filed with an I-485 where proof of inspection and admission is required, will the Service accept as proof of valid entry for adjustment of status purposes a printout from CBP, obtained through FOIA, showing time and date of entry?
Response: USCIS will replace a Form I-94 issued by the CBP except where requests seek correction of determinations made by CBP that the holder may perceive as an error.
c. The special instructions listed on USCIS’ website and included in the instructions to Form I-102 indicate that applicants should submit applications to request a correction to an inaccurate Form I-94, I-95 or I-20ID at the local office having jurisdiction over the alien’s temporary residence. Please describe what if any instructions have been provided to USCIS Field Offices for accepting and processing Form I-102.
Response: The above instructions are incorrect and will be revised.
d. The Form I-102 instructions also indicate that the form I-102 can be used to correct an I-94 for errors made either by USCIS or the applicant. AILA members have reported rejection of Form I-102 for correction of applicant errors. Please confirm that Form I-102 can be used to correct I-94 errors made either by the Service or by an applicant.
Response: The I-102 may be used to correct I-94 errors made by either the applicant or USCIS. Please note, however, that any request to correct an I-94 error made by an applicant must be accompanied by the correct filing fee. A request to correct an I-94 error made by USCIS must be accompanied by supporting evidence.
8. Filing Form I-130 Petitions for Beneficiaries in Removal Proceedings
On February 19, 2008, USCIS announced that effective immediately all petitioners filing stand alone Form I-130s must file their petitions with the Chicago Lockbox instead of a USCIS Service Center. The new instructions do not provide a separate procedure for filing I-130 Petitions for those beneficiaries currently in removal proceedings. AILA urges USCIS to create a mechanism for I-130 Petitions filed on behalf of beneficiaries in removal proceedings to be flagged and separated in the filing process for timely adjudication. Please find AILA’s arguments and recommendations on this issue in the attached Addendum II to the agenda.
Response: The recent I-130 filing instructions only changed the filing location of stand-alone filings from the Service Center to the CLB. These revised filing instructions did not alter any pre-existing filing procedures for beneficiaries in removal proceedings.
Due to a number of practical and operational considerations, it is not possible for USCIS to adopt AILA’s suggestion at this time. However, we will consider whether the petition should be modified in order to flag removal proceedings.
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9. Standard Operating Procedure for Filing I-130 Petitions for Beneficiaries in Removal Proceedings with Final Orders of Removal
AILA requests that USCIS clarify the standard operating procedure for I-130 petitions for those individuals with final orders of removal. Typically I-130 petitions filed on behalf of individuals with final orders of removal are forwarded to USCIS Field Offices for interview. AILA has received reports from members that individuals with final orders of removal are routinely detained at the time of their I-130 interview. AILA understands USCIS position that it has a duty to carry out the immigration laws including not turning a blind eye to those applicants with final orders of removal. The current policy at some Field Offices, however, is having a chilling effect on those individuals who would otherwise be able to apply for forms of relief and reopen their final orders of removal. In many jurisdictions it is difficult to have a motion to reopen adjudicated without an approved I-130 petition. AILA further understands that a higher burden is required to be shown to be granted a benefit when an individual has a final order of removal. In the past, the higher burden was able to be demonstrated via paper at the request of the service center. In light of the new filing procedures for I-130's what will be the standard operating procedures for these scenarios?
Response: This is currently under review at the HQ level. Further instructions will be forthcoming.
10.
Expansion of Premium Processing
a.
Is there any update on when USCIS will reinstate premium processing for I-140 and R-1 petitions?
Response: On January 8, 2007, USCIS issued a press release (that is available on our website) announcing that the suspension of premium processing service for religious worker (R-1) petitions will extend at least until July 8, 2008.
b.
If USCIS is not able to reinstate premium processing of I-140 petitions in the near future AILA urges the Service to permit premium processing for those beneficiaries who are able to demonstrate the need for an I-140 approval to remain in H-1B status under the Service’s current reading of AC21 §104(c). AILA recommends permitting the acceptance for premium processing the I-140 petitions for those beneficiaries that will time out of H-1B status within 120 days and are eligible for an extension of stay under AC21 §104(c). AILA urges USCIS to permit premium processing for this discrete group of individuals given the current processing backlogs and the dire consequences to those beneficiaries who would be eligible for extensions of H-1B stay under AC21 §104(c) but are unable to have their I-140 petitions adjudicated timely.
Response: USCIS is reviewing various options related to the restoration of premium processing for different I-140 petitions-types. The USCIS must weigh the ramifications of favoring one I-140 petition-type over another for expedited service.
Our service centers are working hard to reduce the current backlog of I-140 petitions and training additional staff to adjudicate them. We plan to resume premium processing for this application type once we feel confident that our service centers will be able to deliver the kind of adjudication and customer service required by the program.
c.
Is USCIS currently contemplating including premium processing of I-140 petitions filed under the EB-1-3 preference category?
Response: USCIS is not planning presently to extend premium processing beyond any previously designated categories at this time.
d.
AILA respectfully renews its request that USCIS expand the premium processing program to include E-3 Australian and H-1B1 Singaporean and Chilean and nonimmigrant visa categories. Although direct filing of E-3 and H-1B1 visa applications is permitted at US Embassies and Consulates abroad, it is not always feasible for petitioners and beneficiaries to make visa appointments in a timely and cost-effective manner for initial grants or for extensions of stay of E-3 or H-1B1 status. The unavailability of premium processing is particularly acute for E-3 nonimmigrants, as there is currently no provision for an E-3 nonimmigrant to continue to be employed by a petitioner once a timely filed E-3 extension of stay petition has been filed.5
5 The relevant regulation contained at 8 CFR 274a.12(b)(20) does not include E-3 nonimmigrants in the class of individuals permitted to continue to be employed once a timely extension of stay petition has been filed with USCIS and the current period of stay has expired.
April 2, 2008 USCIS – AILA Liaison Committee Agenda FINAL
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Response: We understand AILA’s desire to expand premium processing to various other nonimmigrant classifications. As we reduce processing times and eliminate the temporary backlogs of applications created by last year’s surge, we hope to expand premium processing, and will consider proposing regulations where necessary to allow for such expansion.
11.
Request for Clarification of Various Issues in the I-9 Handbook
a. Good Faith Defense and Compliance
In 1996 Congress amended the INA to provide a good faith defense, despite a technical or procedural failure, if there was a good faith attempt to comply with the I-9 verification rules. See INA § 274A(b)(6), as added by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IRAIRA), Pub. L. No. 104-208, § 411, 110 Stat. 3009. The newly revised Handbook for Employers does not explain what “technical or procedural” I-9 failures are; nor does it explain “[A] good faith attempt to comply”.6 The public has relied on the March 6, 1997, legacy INS Interim Guidelines, for guidance on these compliance issues. May the public continue to rely on the Interim Guidelines for compliance guidance until a final rule is published?
Response: We appreciate your concerns and are in the process of reviewing this matter in depth.
b. The 240 Day Rule
Aliens in certain nonimmigrant categories are authorized to continue working for the same employer for a period not to exceed 240 days after the expiration of their current period of stay, as long as a timely filed extension of stay application is pending with the USCIS. 8 C.F.R. § 274a.12(b)(20). Under this rule employment must cease upon notice of a denial decision. For I-9 reverification purposes, the employee in this case is employment authorized but the I-9 form contains no provision for this form of authorization. Which employer reverification procedures would suffice?
Response: We appreciate your concerns and are in the process of reviewing this matter in depth.
c.
H-1B Portability
Section 105 of the American Competitiveness in the 21st Century Act of 2000 (AC21), allows employers to hire employees who were previously issued an H-1B visa or change of status, who subsequent to a lawful admission have not been employed without authorization by filing a “nonfrivolous” H-1B transfer petition with the USCIS before the expiration of the alien’s previous authorized stay.7 The employment authorization continues until the petition is adjudicated and must cease if the petition is denied. Please advise whether the USCIS-issued receipt notice qualifies as a List C employment authorization document documents for I-9 verification or reverification purposes.
Response: We appreciate your concerns and are in the process of reviewing this matter in depth.
III.
General Processing/Procedural Issues