Vermont Service Center National Stakeholder Meeting September 15, 2017 Unofficial Notes/Q&As Provided by AILA s VSC Liaison Subcommittee

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Marsha Glenn
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1 Vermnt Service Center Natinal Stakehlder Meeting September 15, 2017 Unfficial Ntes/Q&As Prvided by AILA s VSC Liaisn Subcmmittee I. Opening Sessins/Turs: Miscellaneus facts: 5% f USCIS funding cmes frm Cngressinal apprpriatins. Tier 1 and Tier 2 f the Natinal Custmer Service Center (NCSC) are n different systems. They will eventually bth be Salesfrce systems. Mail is always sent t St. Albans, and may take a while t get t Essex. 500 cntractrs handle mvement f all files. Custmer Service and Premium Prcessing phnes nly in St. Albans. There are n phnes n fficer desks at Essex ffice. New USCIS Natinal Mdel fr Open Huses: New mdel (the first is tday's VSC Stakehlders Event) will be replicated at the ther Service Centers fr their Open Huses in 2018, and there will als be a mnthly telephnic event. New mdel is based n feedback frm stakehlders wanting a mre cncentrated apprach. There is just ne big list nw t subscribe t alerts fr all USCIS Stakehlder Events (n lnger divided by Service Center). Premium Prcessing: Makes n difference if yu call r premium prcessing - same level f respnsiveness. Petitin reaches fficer by Day 3 usually. USCIS Telewrkers: 400 fficers wrk frm hme 4 ut f 5 days, and take physical files hme with them. Wrk frm hme fficers receive hme visits annually frm USCIS t make sure that fficers' wrking cnditins are up t USCIS standards and files are handled securely. Yu must wrk fr USCIS fr a year t be eligible t wrk frm hme. Wrk frm hme emplyees allw VSC t increase its hiring capacity. Premium prcessing fficers must g int the ffice twice per week, ther fficers just nce a week. Hiring/Emplyee Prtfli: VSC has n minimum requirements fr hiring, but many recent hires have been recent law grads r attrneys wh have left private practice. VSC welcmed 100 new fficers last year. VSC currently has abut 1,050 emplyees, and expects t get 100 mre this year. VSC at near capacity, but regularly takes n new emplyees, many leave VSC within 1-2 years. 1

2 Training/Oversight: Officers can transfer t different visa types after 2 years. It can take up t 8 mnths t train a new fficer n a particular I-129 visa. Supervisrs generally apprve denials, particularly fr newer fficers. If the fficer is mre experienced, supervisr review is nt needed. Generally there is ne supervisr fr every 8 fficers. Mtins t repen and AAO decisins are used in training. Supervisrs regularly send ut reminders regarding the pririties f cases t be adjudicated. L/O/P/H - takes an fficer an hur r mre t review (CSC is clse t the same, but a bit faster than VSC). Officers n Ls, Os, and Ps are generally required t stay with these visa prtflis. Extensins: Nt standard practice f fficer t review prir petitin fr extensins (i.e. make sure yu include ample dcumentatin!). RFEs/Mtins t Repen: RFEs are generally held n site. Mtins t repen are generally returned t the initial adjudicating fficer, unless that fficer has left VSC. H-1B Update: There are 3,000 untuched cap H-1B's (as f 9/15/17). Cap Gap H-1Bs get the highest pririty. The H-1B level 1 RFE is part f a SCOPS-level "natinal plicy." Prcessing Times/Wrklad Transfers: 80 fficers make up a surge team wh wrk n visa categries with large backlgs. USCIS is expecting t be back t 60 day adjudicatins ver the winter. The service centers natinwide are aiming t prvide cnsistent results and prcessing times. Natinal Prcessing time gals: Os/Ps: 15 days. Ls: 30 days. Other I-129s: 60 days. VSC hping t mve mre wrk t Lckbx. The Ptmac Service Center (PSC) has severe limitatins n intake and strage, s they d I-90s, H-4/EADs, and ELIS wrk. Plicy/Mem Updates: All draft plicy mems are under review by SCOPS t ensure cmpliance with the Administratin s "Buy American, Hire American" Executive Order. Missin and Visin Statements: New Missin Statement f the USCIS - As dedicated public servants, we are cmmitted t issuing timely and accurate decisins in cmpliance with immigratin laws. 2

3 New Visin Statement Thrugh an empwered wrkfrce and innvatin, we deliver excellence t ur custmers and the American peple. Buy American, Hire American Executive Order USCIS has a "Buy American, Hire American" ffice: SCOPS is currently reviewing EVERY USCIS plicy t prmte hiring U.S. wrkers and raising U.S. wages. It was implied that this ffice may be behind the new requirements n H-1B wage levels, but the fficer frm this ffice culd nt cmment n this. II. Guest Speaker Ernest DeStefan, Chief, Office f Intake and Dcument Prductin: Lckbx handles as much f the administrative prcess as pssible, including the creatin f green cards and EADs. Lckbx is in charge f keeping frms shrter, which is ften at dds with OCC and OPNS. Lckbx may sn start destrying dcuments after they are scanned - this is already true in the cntext f the I-90. The N-400 may sn be electrnic. Lckbx prcesses submissins within 48 hurs, unless it is passed t the Case Reslutin Unit (CRU). Submissins are sent t CRU if the DOB is wrng, the fee is wrng, it is a fee waiver request, r if sme ther material field appears t be wrng. Lckbx can nly accept r reject, nt issue RFEs. Lckbx scans archival material in B&W and submissins in grayscale - n clr. The aim is t digitize everything frm filing t adjudicatin - but this is several years ff. Electrnic Immigratin System (ELIS) must be prperly wrking first. New frms are 2 clumns because it allws mre infrmatin per page, scans better, and prvides better data cllectin. There is n plan t include O, P and Q nnimmigrant visa petitins in the Lckbx. There is a 48 hur hld n printing green cards, just in case the fficer changes their mind. Green cards are mailed ne day later - meaning they are mailed 3 days after apprval. His ffice has taken ver respnsibility fr the Pst Office Nndeliverable (PONDS) Unit, which attempts t unite permanent residents with their permanent resident cards and applicants fr adjustment with EADs and advance parle dcuments that have been returned by USPS as nndeliverable. If a permanent resident card r EAD is nt delivered, yu can cntact this unit at lckbxsupprt@uscis.dhs.gv. 60,000 cards are returned every year, f the 5 millin issued. Mr. DeStefan cnfirmed t AILA by after the Stakehlder Engagement that they d nt cntact cunsel t btain new address infrmatin abut LPRs r applicants fr EAD/AP. They will suggest t the Office f Chief Cunsel cntacting cunsel as a means f getting the beneficiary's updated address. Mr. DeStefan stated that he will reach ut t the Custmer Service and Public Engagement Directrate t infrm them f Stakehlder frustratin with the 3

4 electrnic AR-11 frm nt updating addresses. Applicants may als update a residential address by calling the USCIS custmer call center, in additin t filing Frm AR-11. Lckbx Filing Tips: Send in the crrect fee. Sign the frms prperly. A separate check fr each required fee is better. N electrnic/scanned signatures are accepted; must be riginal signatures. Lckbx des nt want separatrs r pst-its. Lckbx can handle duble-sided submissins but Service Centers prefer ne-sided cpies. III. O/P/Q Presentatin: General Infrmatin: USCIS Custmer service will sn be able t handle address changes ver the phne. Beneficiaries have n grace perid after terminatin. VSC prvides industry training with respect t sprts, but nt the entertainment industry. O's and P's can be self-emplyed as lng as they have an agent. USCIS still expects evidence that cmprts with the regulatins, even if it is an O-1 fr smene in new media. Negative cnsultatin letter des nt prevent apprval; it can be vercme by evidence. USCIS was nncmmittal as t whether recrding a sng fr a mtin picture sundtrack is Arts r MPTV. Filing Tips: Prefer table f cntents with separatr sheets (either different clr, weight, r texture). NO TABS r anything that hangs belw the page. N mandatry rder fr exhibits. Dn't mix and match criteria frm O-1A, O-1B Arts, r O-1B MPTV. The VSC attempts t adjudicate primary petitins with dependents, but can't always, s make sure dependent petitins can stand n their wn. Clearly identify cnsultatin letter in the filing. Clr cpies are nt required. If return Fed Ex mailer is included, USCIS will use it but include explanatin that USCIS shuld use it t mail the apprval ntice. D NOT send duble-sided cpies. Beneficiary cannt translate their wn publicatins fr O-1 petitins; they have t be "certified" fr translatin. USCIS wants the entire article translated, nt just the abstract. Agent Petitins When filing an agent petitin, explain the agent relatinship. If the agency relatinship des nt fall under the categries listed in the regulatins, explain the relatinship t the Service with as much detail as pssible. 4

5 If a perfrmer changes agents, n deference will be given t the previus O petitin because a new petitiner is a change in circumstances - deference des nt apply. Itineraries/cntracts: Prvide all cntracts and itineraries fr the requested validity dates. USCIS indicated that the cntracts/itineraries shuld cntain phne numbers, and that they can/will call the venue/emplyer. Itineraries shuld als cntain beneficiary's duties. If requesting time that starts befre cntract date r ges beynd cntract dates, explain why yu are requesting such time. IV. Pre-Submitted Questins by AILA with Answers Prvided During the O/P/Q Sessin: 1. Prcessing times - We appreciate that the VSC has wrked n their backlg t speed up prcessing times fr O-1 and P-1 adjudicatins. a. Fr cases that are filed under regular prcessing, under what circumstance will USCIS use the prepaid FedEx label prvided t ensure quick delivery f the apprval ntice? USCIS ANSWER: Must be pre-paid and addressed t and frm the Attrney's ffice. b. Are there circumstances where use f the prepaid FedEx label wuld delay the mailing f the apprval ntice(s)? USCIS ANSWER: N. 2. Order f Exhibits - Is there a preferred rder fr the exhibits fr O, P, and Q petitins? Please als advise t any preferred rder when submitting petitins fr multiple beneficiaries (i.e., supprt staff and/r dependents). USCIS ANSWER: There is n preferred rder, but USCIS wuld like a table f cntents and separatr sheets. 3. Agents as Petitiners - There cntinues t be cnfusin n this issue as the regulatins nly list 3 scenaris, when this list is merely suggestive and nt exhaustive. The wrding f 8 CFR 214.2()(2)(iv)(E) and 8 CFR 214.2(p)(2)(iv)(E), which is nt exhaustive, prvides in relevant part: A United States agent may be: The actual emplyer f the beneficiary, the representative f bth the emplyer and the beneficiary, r, a persn r entity authrized by the emplyer t act fr, r in place f, the emplyer as its agent. a. What type f training d fficers receive n this issue? b. What cntrl factrs are cnsidered in deciding whether a petitiner qualifies as perfrming the functin f an emplyer versus being in business as an agent such that deal mems/cntracts with end emplyers are nt required? 5

6 USCIS ANSWER: An agent is NOT limited t the three enumerated agents listed in the regulatins. If the relatinship desn t quite meet the criteria fr the enumerated agents, USCIS asks that the agent, petitiner, and beneficiary relatinship be clearly explained and dcumented. 4. Itineraries What type f training d fficers receive regarding industry standards? Fr example, in sprts, althugh the cmpetitin may nly be 6 mnths f the year, the athlete(s) is required t be in the U.S. fr training and ther activities during the ffseasn and validity dates shuld nt be arbitrarily limited t cmpetitin dates nly. Similarly, in the rck music-entertainment industry, artists signed t recrd labels and agencies are cntracted t write, recrd and perfrm new music and validity dates shuld nt be arbitrarily limited t live perfrmance dates available n the internet. Please remind fficers that AFM chapter 33.4(e) explains hw a series f activities n an itinerary may be cnsidered as ne event r activity, in which case the petitin shuld be apprved fr the full requested validity perid. Finally, we nte that any bjectin by USCIS t speculative emplyment is nt based n any statutry r regulatry prvisin, and that language in RFEs t that effect shuld be mitted. a. What is the best practice fr attrneys/petitiners t demnstrate the need fr the beneficiary/beneficiaries t be in the U.S. fr training/practice/recrding, etc. in accrdance with industry standards? b. Similarly, 8 CFR 214.2()(2)(ii)(C) and 8 CFR 214.2(p)(2)(ii)(C) require [a]n explanatin f the nature f the events r activities, the beginning and ending dates fr the events r activities, and a cpy f any itinerary fr the events r activities. Hwever, USCIS ften requests very detailed itineraries fr ptential dates in the future that, at the time f filing the petitin, are nt yet knwn r established. Fr example, in the cntext f fashin mdels, the beneficiary may knw that he r she will mdel in spring and fall fashin shws but may nt knw the specific designers fr whm he r she will perfrm services. If a wellestablished bking agency states that it will bk dates fr an established artist fr the requested validity perid, and/r the mdel has bked similar shws in previus years, what is the best evidence t prvide t the Service t supprt the apprval fr the validity dates requested n the petitin? USCIS ANSWER: All cntracts and itineraries shuld include phne numbers fr the lcatins and a detailed explanatin f the activities listed beynd the cntracted dates. See USCIS Prvides Filing Tips fr Frm I-129 O,P, and Q Petitins AILA Dc. N , fr mre infrmatin n cntracts and itineraries. 5. Advisry Opinins - Thank yu fr updating and psting nline the USCIS list f labr unin and management rganizatins. a. Is there a way t update this list mre regularly t reflect crrect fees, cntact persns, and jurisdictinal lines? b. If mre than ne unin is qualified t prvide an advisry pinin with respect t a particular ccupatin and each unin appears n the USCIS list, hw des USCIS suggest petitiners g abut selecting the apprpriate unin fr 6

7 cnsultatin and dcument that such selectin is sufficient s as t avid issuance f an RFE? c. Further, when an RFE is issued fr an advisry pinin letter, frequently the language states that such a letter is required, but des nt instruct n the apprpriate rganizatin t request the letter. In sme instances, there may nt be an apprpriate rganizatin that petitiner is aware f, s there is n way fr the petitiner t adequately address the Service's cncerns. Hw shuld the petitiner respnd t this type f RFE? USCIS ANSWER: The address index is updated n a quarterly basis. 1 Hwever, USCIS encurages stakehlders t updates r infrmatin n additinal grups/rganizatins t: USCIS-IGAOutreach@uscis.dhs.gv. If there is mre than ne qualified unin t prvide an advisry pinin, the petitiner may submit an additinal advisry pinin. If n labr unin r peer unin exists that can prvide an advisry pinin letter, then the petitiner shuld shw prf that a gd faith effrt was made t lcate ne. 6. Cnsultatin Prcess - Sme unins, peer grups, and management rganizatins impse extra-regulatry and burdensme requirements during the cnsultatin prcess. While we appreciate unin cncerns abut fraud in the O/P cnsultatin prcess, the unins shuld nt insist n dcumentatin which USCIS des nt require in rder t issue an advisry pinin. a. Hw des USCIS cmmunicate with advisry rganizatins abut the regulatry requirements in reviewing a case? b. In cnnectin with the unins cncerns abut fraudulent letters and applicatins, can the Service share and discuss the actual amunt and type f fraud currently fund in cnsultatin letters, s we may wrk tgether twards a mre fcused and efficient slutin? USCIS ANSWER: USCIS may issue a NOID if the cnsultatin is thught t be fraudulent. 7. New Media (i.e., Instagram, YuTube artists, etc.) - What is the best way t present evidence that the beneficiary is an artist f extrardinary ability in a field f emerging media that des nt fall precisely within the regulatins? Can we recmmend that such evidence include the fllwing? Internet dwnlads, views, cmmentary, and nline ratings fr prductins and perfrmances (e.g., Netflix, YuTube, Vime, Vine, etc.); Blg r website traffic and ppularity/cmmentary (i.e. number f daily views, unique visitrs, press impressins, and recgnitin by ther scial media websites); and/r Scial media ppularity and presence (e.g. Facebk likes r fans, YuTube views r subscribers, Twitter fllwers r number f re-tweets, Instagram fllwers, etc.) 1 Fr the Address Index fr I-129 O and P Cnsultatin Letters, please visit 7

8 USCIS ANSWER: USCIS is aware f and will cnsider new media evidence, but nly in additin t the evidence required by regulatin. This evidence by itself wuld very likely nt be enugh and wuld result in the issuance f an RFE. 8. O-2/P Essential Supprt Persnnel Members reprt that VSC has been requesting evidence f O-2 supprt that is beynd regulatry standards and nt in line with industry nrms, such as articles abut the O-2 beneficiary, phtgraphs f the O-1 and O-2 tgether, paystubs frm the same emplyer, passprt stamps shwing the O-1 and O-2 traveling tgether, etc. Fr example, n a large-scale tur, the artist will hire the US lighting, sund and vide cmpanies, which in turn pay either the O-2 freign natinal directly r thrugh their freign cunterpart. This is a different entity than the O-1, wh may be paid by the prmter, the recrd cmpany, r their wn lan-ut cmpany. Althugh the O-1 and O-2 essential supprt persnnel have wrked tgether n the tur utside the United States, the payrll recrds d nt reflect this. Mrever, it is nt reasnable t expect the O-2 freign natinals t have articles written abut them. Oftentimes we have submitted paystubs frm the same cmpany r phtgraphs f the O-1 and O-2 tgether and USCIS states such evidence des nt satisfy the requirement f critical skills. A letter frm the petitiner r O-1 beneficiary shuld be given credit. a. Hw des USCIS weigh the evidence? b. What supprt d any f these evidentiary requirements have in the regulatins? USCIS ANSWER: SCOPS/VSC asked fr specific examples. If an AILA member has a specific example f this particular issue, please cntact AILA s VSC Liaisn Cmmittee. 9. U.S. Cnsulate in Lndn O-1 Denials and Revcatins - Recently, the AILA VSC Liaisn Cmmittee has received numerus reprts frm AILA members cncerning O visa adjudicatins by the U.S. Cnsulate in Lndn, specifically a marked increase in 221(g) visa denials, referrals t USCIS fr revcatin, and placement int administrative prcessing fr apparently meritrius and apprvable O visa applicatins. AILA recgnizes that fficers diligently wrk t make apprpriate determinatins n each applicatin that cmes befre them and that fficers need t be able t exercise wide discretinary decisin-making authrity t carry ut their duties. AILA wuld like t ensure the VSC is aware f this uptick in visa denials and delayed adjudicatins. a. Fr the petitins that are being sent back t VSC fr revcatin by the cnsular pst, what is the prcess fr handling these petitins, and what is the timeframe fr reviewing cases that have been returned t the service center? b. Fr the returned petitins, is there a mre efficient manner by which the service center can ntify attrneys waiting fr review f the cnsular fficer s recmmendatin fr revcatin, such as updating the Online Case Status and/r including returned petitins in the USCIS Prcessing Times Reprt? USCIS ANSWER: VSC cannt cmment n DOS determinatins but will lk int the prcess nce a petitin is received frm KCC with a recmmendatin t revke. The file must be received back frm the Natinal Recrds Center in rder fr the VSC t review it. 8

9 10. Cmparable Evidence Please prvide a status f the Cmparable Evidence mem. Until the mem is published, please clarify CIS plicy with respect t the cmparable evidence categry and cnfirm that petitiners nly need t shw that ne regulatry criterin des nt apply t the field f endeavr in rder t be permitted t rely n cmparable evidence. Please als cnfirm that a detailed, credible narrative explanatin frm the petitiner as t why a regulatry grund des nt apply t the beneficiary's field f endeavr will suffice. USCIS ANSWER: The Cmparable Evidence mem is still cnsidered a draft mem. All plicies, including draft memranda, remain under review due t the Buy American Hire American Executive Order issued earlier this year. 11. Musician perfrming as a musician n mtin picture and televisin Please cnfirm that if a musician perfrms n a sundtrack fr a mvie, a cnsultatin frm AMPTP shuld NOT be required as the musician is nt ding anything different than writing and perfrming music regardless if it is n live, streamed, r recrded sundtrack. Only the medium n which the music is recrded is different. This change f recrding medium shuld nt change the O-1 standard frm arts - prminence t mtin picture extrardinary achievement. USCIS ANSWER: This wuld need t be reviewed n a case-by-case basis but generally, VSC shuld nly require ne cnsultatin fr the arts. 12. Requirement f Lead r Starring Rles - Members have reprted receiving RFEs in which USCIS is requesting evidence that O-1 beneficiaries in the arts and film/tv will perfrm in lead r starring rles fr distinguished prductins/events r rganizatins/establishments as per 8 CFR sectin 214.2()(3)(iv)(B)(1) and (3) as well as 8 CFR sectin 214.2()(3)(v)(B)(1) and (3). These requests are beynd the scpe f the O-1 statute. INA sectin 101(a)(15)(O)(1) requires that a beneficiary seek t enter the U.S. t cntinue wrk in the area f extrardinary ability. Als, the O-1 final rule, published at 59 FR 41818, makes it clear there is n statutry supprt fr requiring an O-1 alien t be cming t the U.S. t perfrm services requiring an alien f O-1 caliber. This is further cnfirmed in the AFM at Chapter 33.4(d). Please cnfirm that USCIS will fllw the regulatins cnsistent with the law, legislative histry and plicy mems. USCIS ANSWER: USCIS encurages petitins t explain which evidence meets which criterin. 13. Lwer-Level Sprts Leagues - Lwer-level sprts leagues (e.g., Indy Lights), participants in individual sprts (e.g., triathletes), and new frms f prfessinal and amateur sprts shuld be eligible fr P-1 status. Hwever, USCIS ften refuses t recgnize that cmpetitins in such leagues and sprting events can have a distinguished reputatin (albeit at a lwer level than majr league sprts) and require participatin f athletes with an internatinal reputatin. Denial f these petitins gives the false impressin that the U.S. des nt welcme internatinal athletes in cmpetitins against U.S. athletes, and culd lead t ther cuntries denying participatin by U.S. athletes in freign cmpetitins. 9

10 a. Wuld USCIS cnsider the issuance f a plicy memrandum setting frth a presumptin f internatinal reputatin f the cmpetitin in which a P athlete will participate, where the P athlete therwise meets the eligibility requirements f 8 CFR sectin 214.2(p)(4)(B)(2)? There is precedence fr the applicatin f a presumptin in ther areas f the regulatins and this culd be applied here as well. In additin, the plicy memrandum culd explicitly state the imprtance f facilitating the entry f internatinal athletes fr the purpse f cmpeting in U.S. sprting events and affirm that athletes cmpeting in lwer-level leagues that feed int majr leagues, r in sprts that are newer r nn-mainstream, are fully eligible fr P-1 status. USCIS ANSWER: Nt answered. If an AILA member has a specific example f this particular issue, please cntact the VSC Liaisn Cmmittee. 10

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