1. RFE for Bargaining Representative Attestation. Nebraska Service Center Teleconference- Business Line Issues Thursday, February 26, 2009

Transcription

1 Nebraska Service Center Teleconference- Business Line Issues Thursday, February 26, RFE for Bargaining Representative Attestation I-140 Processing Times I-140 IBIS Check Duplicate Labor Certifications I-485 Processing Times I-485 FBI & FDNS Background Checks Order of Documentation for I nd Fingerprint Notices Confirmation of I-140 Porting under AC I-485 Referred for Interview Reentry Permit Biometrics Current Processing Times for I-140, I I-485 Transferred to National Benefits Center Evaluating Original Research as Evidence of International Recognition... 8 For NSC: Tom Barber Joan Hamm, Immigration Service Officer Ginger Bowser, Congressional Liaison Chief Kris Krandall, I-140 Steve Pollnow, I-485 NAFSA Note: The Nebraska Service Center no longer provides written answers in advance of liaison teleconferences due to a new internal policy to clear all written guidance through USCIS Service Center Operations. Until written answers are available, NAFSA will post unofficial summaries of NSC verbal responses compiled by NAFSAns on the teleconference as preliminary guidance. However, the answers are subject to change. 1. RFE for Bargaining Representative Attestation We have noticed a recent trend with Requests for Evidence in connection with I-140 petitions filed under Schedule A. The RFEs pertain to the Notice of Filing requirements for hospitals with RNs represented by a bargaining representative. In addition to requesting copies of the required Notice of Filing which was sent to the representative, the USCIS has now begun requesting a signed attestation from the bargaining representative confirming receipt of the Notice of Filing. This requirement goes beyond the regulations regarding notice found at 20 C.F.R (d). The regulations state that the petitioner must be able to document that notice was provided, and that documentation may consist of a copy of the letter and a copy of the ETA 9089 which was sent to the bargaining representative. Please confirm that (as in the

2 past) the petitioner s signed attestation confirming that notice was sent, along with a copy of the notice, will be sufficient evidence of compliance with 20 C.F.R (d). Summary of NSC response: In general, a copy of the notice and ETA-9089 is all that is needed. But in some circumstances, NSC may RFE for a letter from bargaining representative, but it s very case-specific. For example, NSC may RFE if the I-140 provides evidence that notice was posted, but there is no evidence that the bargaining representative received. For NSC to determine whether it was appropriate in a particular case, submit an inquiry to your Reg Ombud through Get Liaison Help [ Be sure to include the receipt # so NSC can look at the case to determine whether the officer RFEd appropriately. F/U question: It is rare for a bargaining rep to be on a University campus. Does every app need? Summary of NSC response: No, not every I-140 every needs this evidence; only an I-140 that indicates there is a bargaining representative for that specific employer requires it. If there is evidence that there is a bargaining representative, the adjudicator will look for evidence that notice was provided to the representative. 2. I-140 Processing Times Please provide an update on I-140 processing times; the reported times do not appear to be accurate or meaningful since it appears to be common for some I-140s to remain unadjudicated for months and even years, while others are adjudicated much more quickly than would be expected based on the processing time report. Summary of NSC response: Processing times vary across categories. Reminder: dates are for new work that we haven t started pulling yet. There may be some files with earlier dates that are still pending. It does not mean that everything before these dates is done, just that we are currently pulling files from the following dates to start working. I-140 category Processing Time (date of files currently being pulled to work) E11 04/01/08 E12 03/01/08 E13 06/15/08 E21 2 nd preference 07/01/08* E31/32 3 rd preference 10/01/07* EW3 10/1/08 NIW 8/1/08 * NSC expects both 2 nd & 3 rd preference to be Jan 2008 by the end of this month NSC expects to be at 4 month processing at all types no later than 6/1/09 after clearing the current backlog. F/U Question: what do you base this estimate on? Summary of NSC response: Work pending, officers working, receipts being received.

3 F/U Question: Are you seeing a dip in receipts? Summary of NSC response: Absolutely, the economy is having an impact on the amount of work we re seeing. 3. I-140 IBIS Check Please explain the criteria for delaying an I-140 adjudication due to background check why are I-140 petitions, which confer no benefit in themselves, subject to a background check requirement? What are the common issues in these cases? Summary of NSC response: I-140 undergo a standard IBIS check, which must be resolved if anything comes back. However, I-140 do not require other background checks or fingerprints. The IBIS check is a systems check to see if there is any information for the particular applicant or beneficiary. The NSC ILS will send a factsheet that generally explains the IBIS program, but due to the nature of IBIS inquiries, NSC is precluded from saying much more. See #6 below for more information on other background checks. 4. Duplicate Labor Certifications The regulation at 20 CFR (e) provides that either a consular officer, the USCIS or an interested party can request a duplicate labor certification, but the Department of Labor (DOL) Certifying Officer must send the duplicate directly to the USCIS or consular officer only. Where either NSC or a petitioner has requested a duplicate labor certification from DOL, but DOL has not responded, will the Nebraska Service Center (a) hold the pending I-140 until DOL responds to the request; and (b) escalate a request for a duplicate labor certification with the DOL when the DOL fails to respond to a properly submitted request? Summary of NSC response: NSC is developing internal processes and liaison with DOL. When NSC hasn t received the duplicate notice, NSC will reach out to DOL to try to get the notice faster. There was a period of time when NSC was actually issuing NOID because of the lack of the duplicate notice, but NSC has stopped this practice because it was determined that it was not the appropriate course of action. You should not be receiving NOIDS anymore in this situation. If you received a NOID or subsequent denial, please send to NSC ILS with ATTN: Kris Krandall. 5. I-485 Processing Times Please provide an update on I-485 processing times; the reported processing time for employment-based I-485s has been hovering around July 2007 since April of last year. Summary of NSC response: NSC has a 2-track work distribution: NSC works viable cases (visa available, prints on file, etc) in the month the visa is available. For other cases that aren t viable, NSC is currently working cases filed in August o Note: NSC is pre-adjudicating these, but then they sit on shelf to be readjudicated again at some point down the road.

4 NSC is working with HQ/SCOPS to post more valuable information on the processing times web site that makes this distinction for processing times for viable cases. Note: Last month, HQ/SCOPS posted the wrong processing times for the period ending 12/31/2008; the web site showed that NSC was within 4 months (NSC isn t there yet, but hopes to be by the end of FY2009). The correct processing times were posted yesterday. Reminder: the processing times only reflect that NSC will work these cases, but most will sit on the shelves until the visa is available. 6. I-485 FBI & FDNS Background Checks The February 4, 2008 Aytes memo categorically stated that adjudicators shall approve I-485 applications where an FBI name check has not been completed after 180 days. We have also seen announcements stating that the FBI has substantially reduced its backlog of pending name checks. Yet it appears that there are at least 20 I-485 applications that have remained pending at NSC for years, not days. The AILA NSC Liaison Committee receives information continuously on cases that are delayed due to background checks, and offers the attached list of I-485 cases that have been pending at NSC for significantly longer than 180 days (many for 5 years or more), including at least 20 cases with current priority dates. We are concerned that either the Aytes memo is not being consistently followed, or there are exceptions to the Aytes memo that may have the effect of circumventing its intent. (One obvious exception is that the memo refers only to I-485 applications and does not cover I-140 petitions, so if the I-140 petition is delayed due to a background check, then the I-485 application is also delayed.) Are there other background checks in addition to the FBI name check that must be completed in these cases and are not covered by the Aytes memo? If so, please describe these checks. What other factors might contribute to the long delays in resolving these cases? Summary of NSC response: A 02/09/09 Neufeld memo regarding National Security Adjudication & Reporting Requirements Update [HQ 70/23 & 70/28.1] established a new policy that adjudicators should no longer automatically approve I-485, I-601, I-687, and I-698 where the FBI background check has been pending more than 180 days, but should follow up with SCOPS. Please ask SCOPS for a copy of the memo. Post-Aytes memo, the backlog for FBI background checks have worked themselves out for the most part. There are some cases held for a variety of other reasons, but they represent an extremely small percentage of cases. For 99% of cases, namecheck is a non-issue now. NSC is always happy to look into cases and give an update as best as we can. For most cases being held for a longer period of time, it is probably not due to an FBI namecheck, but something else. If you have something pending far outside normal processing times and the visa is available, send the inquiries to NSC. For the case examples sent by AILA for this question, NSC did a sweep: half have been cleared, so the officers can move forward; the other half are still held up with security reviews. NAFSA note: From the 02/09/2009 Neufeld memo: Over the past year, the FBI has worked diligently to ensure that definitive FBI name check results are returned to USCIS in less than 180 days. In fact, the FBI is currently returning name check results on average in 90 days. Few, if any, name checks remain pending at the FBI for 180 days. In light of FBI s improved processing and response

5 times, USCIS is revising its policy of automatic approval of certain cases after 180 days. Effective immediately, adjudicators will be required to contact Headquarters to obtain authorization to approve the pending I-485, I-601, I-687, or I-698 prior to receiving FBI name check results The Headquarters point of contact will reach out to the FBI to determine the reason for the FBI name check processing delay. HQDOMO will then provide the adjudicating officer with case specific guidance, including where appropriate authorization to approve the pending I-485, I-601, I-687, or I-698 prior to receiving the name check results. F/U question: When you send cases to HQ in this situation, how long is it taking? What unit are you dealing with? Summary of NSC response: NSC will not have to physically send the case to HQ; NSC will communicate electronically with HQ SCOPS personnel in real-time to try to resolve. F/U question: Can you identify what the other background checks are? Summary of NSC response: There is a unit here at NSC, the Center Fraud Detection Office (CFDO), that is tied to Fraud Detection & National Security (FDNS) at HQ. This office reviews cases, and pulls some for a variety of reason that we can t really speak to. They work fraud and security issues and have their own set of criteria and protocols for how cases come to their attention. If someone determines a case needs to be held for further investigation, it is out of our hands to make anything happen. It is more appropriate to speak with SCOPS to provide a better overview and information. My area is to make sure my officers are adjudicating I-140/485 under the regulations. But again, if a case has been sitting for years, NSC is willing to look into it to make sure that NSC still has it, and inquire with CFDO/FDNS about the case to see if still pending. 7. Order of Documentation for I-485 Could NSC provide an order of supporting documentation it likes to see with an EB I-485 case, particularly for a case with dependents? Summary of NSC response: The order that it is submitted in isn t that important because it is not necessarily the order the documents would be put into file by mailroom. What is important is making sure you have all of the supporting documentation needed, e.g.: Immigration Documents Birth Certificate when needed for each application If family package, copy of marriage certificate in every application (helps with legitimation issues) o Note: If the marriage less than 2 years, the adjudicators have to evaluate bona fides of the marriage (bank statements, letters) as if it were a 751.* see below for more discussion. English translation G-85 with original signatures Evidence that CDC requirements fulfilled o Note: NSC is seeing a lot of deficiencies in this area. The applicant needs to take the information sheet into the civil surgeon to make sure the surgeon signs off

6 that all requirements are fulfilled (e.g. vaccination requirements, positive TB requires a chest x-ray) Status documents Employment letter for principal F/U Question: Why does bona fide of marriage matter in the business context? Does it appear in the Adjudicators Field Manual, Standard Operating Procedures, or elsewhere in written guidance? Summary of NSC response: Establishment of the relationship is required by the regulations, but it is more important in the I-130 arena. Just because the marriage is being evaluated in the employment context doesn t mean they don t have to provide bona fides. If married less than 2 years, NSC needs to ensure that benefits are not granted unless bona fides proven. If there isn t sufficient evidence to establish bona fides, NSC will refer to the field office for an interview. In general, a U.S. citizen child is the best evidence of a bona fide marriage. 8. 2nd Fingerprint Notices Some I-485 applicants who filed in 2006 and submitted fingerprints at that time remain pending due to priority date retrogression. Now, it has been 27 months since they did the first finger print and they have not yet received the 2 nd fingerprint notice. What is the current NSC policy on sending a 2 nd (or third) fingerprint notice for a pending I-485 if no visa number is available? Is it the current policy that NSC will not send the second (or third) fingerprint notice if there is no visa number available (even if more than 15 months have passed after the first fingerprinting)? Summary of NSC response: HQ/SCOPS is working on a system that will electronically refresh so Service Centers won t have to do manual rescheduling. NSC can t speak in details, but practitioners should not be seeing as many new ASC notices. It will never be 100%; some people will have to be rescheduled for different reasons, but hopefully it will be a small percentage. Because biometrics are stored electronically, USCIS will be able to use those with FBI and other agencies rather than having to request again. 9. Confirmation of I-140 Porting under AC21 Regarding I-140 porting under AC21 [INA section 204(j)] after an I-485 has been pending over 180 days, will NSC provide written confirmation to applicants who file a letter indicating that they have changed employers that their I-140 has (or has not) been successfully ported? Summary of NSC response: No 10. I-485 Referred for Interview (a) There appears to be an increase in I-485 cases being referred to a district office for interview, including interviews for spouses where the principal applicant s I-485 has been approved. Please discuss the common circumstances under which NSC will refer an EB I-485 case to a District Office for an interview.

7 Summary of NSC response: From NSC s standpoint, there aren t that many. The standard referrals are for those with criminal histories, aliens who entered EWI, questions about marriage bona fides, consent concerns re: viability of job offers, & other specific fact sets that require more inquiry. (b) In one case, an I-485 was referred for interview even though many years would be needed before the beneficiary s priority date would become current. Is this the current practice at NSC? If so, where is the file to be maintained after the interview and for the foreseeable future? Where should I-765 and I-131 renewal applications be filed? Summary of NSC response: Yes, it is current practice. As NSC works through inventory, if a case needs to be relocated, NSC relocates it. If there will possibly be an NTA/denial, NSC moves for that to happen as soon as possible. I-765 and I-131 renewals should be filed at the Service Center identified on the receipt notice. 11. Reentry Permit Biometrics We have had the following question from an AILA member regarding biometrics for reentry permits: There appears to be an issue with scheduling ASC Code 1 (the 10 finger) biometric appointments and then scheduling yet another appointment for ASC Code 2 (photo and index finger capture)? As these applicants usually must urgently report abroad due to employment or family reasons, we would ask that appointments are scheduled to take care of ALL of the biometrics at one time rather than forcing applicants to schedule another return trip to the US. I have attached several examples. Can you find out if there is an issue with the biometrics scheduling? Summary of NSC response: This is not a business line question; please make sure questions are for the topic at hand. NSC looked into the reported cases; of 5 biometric notices attached, only 1 was generated here at NSC. The other applications were from AWS, indicating that NSC is the Service Center, although NSC does not know why these were generated through the scheduling equipment at HQ. NSC has asked HQ to schedule the applicant for all at once. HQ sometimes downgrades a request from code 3 (10 prints + photo, index finger & signature) to code 2 (only photo, index finger & signature). NSC assumes this is because USCIS already has recent fingerprints. Applicants as a general rule should be receiving either a code 3 or code 2 notice from NSC on I- 797 paper. NSC doesn t ask that any are scheduled for code 1 only. F/U question: What is the distinction between codes 1, 2, & 3? Summary of NSC response: Code 1: 10 prints only Code 2: biometrics (includes photo, index finger & signature) Code 3: all of the above

8 12. Current Processing Times for I-140, I-485 Can NSC please provide an update on the actual processing times for: a) I-140 b) I-485 Summary of NSC response: See above answers at #2 and # I-485 Transferred to National Benefits Center Some employers report that in a concurrent filing of an I-140 and I-485, the I-485s have been transferred to the National Benefits Center following approval of the I-140. However, neither the principal nor the attorney has received a Notice of Transfer. Can NSC comment if this is standard practice, an error, or just a temporary procedure to help with backlog reduction? Summary of NSC response: Cases should not go to NBC unless being relocating for interview. F/U question: Some I-485 were transferred to CSC, but received a WAC receipt. Summary of NSC response: CSC was just assisting with receipting some I-485s. If the case has a WAC receipt, it came back to NSC to adjudicate. 14. Evaluating Original Research as Evidence of International Recognition We have received some reports of RFEs that appear to confuse the publication standards for Extraordinary Ability (contributions of major significance to the field) with the outstanding researcher/professor standard (original scientific or scholarly research contributions or authorship of scholarly books or articles as evidence of international recognition in field, but there is no requirement that it be of major significance). In one case (LINxxxxxxxxxx), regarding "original contributions to the field", the RFE indicates that letters from peers and colleagues 'do not overcome the documentary evidence that the work has made an impact on the field...assertions about the value of the beneficiary's work do not establish or imply international recognition'. For "authorship of scholarly books", the RFE states "authorship and publication of results is a normal part of a researcher's duties. The very act of publishing...does not constitute a scholarly contribution of major significance." Despite submitting additional documents to show the intended beneficiary also was asked to present in prestigious conferences, and that her work has been cited more times than average with letters to document the impact of the work, the I-140 was denied. Questions: How do adjudicators determine whether an original scientific or scholarly research contributions is sufficient evidence of international recognition in the field for Outstanding Researcher/Professor I-140s, apart from the support letters from experts and number of citations?

9 Summary of NSC response: Note: NSC reviewed the specific file cited as an example; while the adjudicator did not articulate the correct standard in the RFE, the case did not meet the standard of international recognition in the field. The reasoning was correct and the denial will stand. In general, NSC will analyze whatever documentation is provided. For reactions of peer experts in the field, one of the things NSC looks at is who the letters are coming from- if they are from the same research group or institution, the letter does not hold as much weight as a letter from someone not working with the beneficiary on daily basis. NSC will also analyze whether anyone in the scholarly mainstream media have cited. The recognition in the field must meet the definition of international. How do adjudicators evaluate the prestige of journals in particular fields? Do adjudicators have a list of journal rankings? Summary of NSC response: There are some journals that everyone knows are prestigious, e.g. Science, Nature, New England Journal of Medicine. For those that are less known, the adjudicator would do some additional research into the citation records or distribution. F/U question: Would it help to give impact studies/ratings on journals? There are impact studies with ratings, which use objective criteria to evaluate the research. One of problems with using distribution levels as criteria to evaluate journals is that so many journals are online now, so they don t track distribution. Summary of NSC response: The main criteria we look at is how widely distributed journal is, that sort of thing. If there is a standard impact study you can provide, that would not hurt. The impact study would have to indicate what objective criteria were used and how the impact study came to be. Next call: 3/26/09 on Refugee/Asylee issues