U.S. INS Written Answers to Questions




I. IBIS CHECKS

II. READJUDICATION OF CASES PREVIOUSLY CONSIDERED AND DECIDED AFFIRMATIVELY

III. THE FILING OF DIVERSITY VISA APPLICATION 3 MONTHS PRIOR TO VALIDITY

IV. EDUCATION EVALUTION

V. EAD RENEWALS

VI. ABILITY TO PAY THE OFFERED WAGE

VII. EB-5 PROCESSING

VIII. PRESUMPTION OF MISREPRESENTATION OF IMMIGRANT INTENT

IX. INFORMATIONAL ITEMS:




I. IBIS CHECKS

  1. We understand that, currently, the IBIS checks for employment-based adjustment of status applications are being processed at the District Offices. When an adjustment of status application is approved, the applicant is notified and directed to go to the appropriate INS District Office with his or her passport to get an I-551 stamp. The District offices perform the IBIS check, evidently once the file is transferred. This has created untenable situations at some District offices, most notably New York. If the IBIS check is not done, the applicant is not stamped in. If the advance parole document and /or the EAD is close to expiring, the applicant has no ability to travel or work because once an adjustment is approved, INS will not process an application for EAD or advance parole.  In jurisdictions like New York, these applicants are left with no documentary ability to travel or work for significant periods of time.  We have been led to understand that the IBIS clearances in employment-based adjustment cases may remain in the future with the Service Centers which can process them before issuing the approval notice. This would appear to be more efficient and equitable, particularly in light of a significant number of "false positives".   Please confirm the Service’s procedures.
  2. Also, we understand the Service is considering limiting the validity period of an IBIS check to 15 days.  It is quite clear, given the slowness in mailing approval notices from the Service Centers (particularly in regards to adjustment approval notices) that, should IBIS checks be done at the Service Center, the alien is unlikely to have sufficient time to travel to the local office prior to the expiration of the 15 day period.  We would urge the Service to have at least a 45-day validity period for IBIS checks, particularly for cases of adjustment of status.

Response to A/B: IBIS checks are currently conducted within 15 days of receipt on INS applications and petitions at both service centers and district offices.  The check remains valid for 35 days.  If at the time of adjudication more than 35 days has passed a new check must be performed.   We are not considering reducing the 35-day validity period for these checks to 15 days.

In adjustment of status proceedings the service center notifies the applicant of Form I-197 of the approval, and directs the applicant to the local district office to receive a stamp in her/his passport.  No additional check is needed at the district unless the 35-day period from the last check has expired.  When an IBIS check is required before a passport can receive the temporary I-551 stamp many offices complete that work the same day.  A small percentage of these cases result in a IBIS “ HIT” or positive response.  These cases may require significantly more time to resolve.  Offices have been instructed to place a stamp in the passport valid for a 30-day period.  Hence an application for advance parole or employment authorization would be unnecessary.



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II. READJUDICATION OF CASES PREVIOUSLY CONSIDERED AND DECIDED AFFIRMATIVELY

We continue to see problems with previously-decided issues being readjudicated,  such as revisiting of L-1A issues in I-140 petitions for multinational managers and executives and re-adjudication of H and L issues on filings for extensions where there have been no material changes since initial filings.  While we understand that each petition or application will be decided on its merits, we ask that Service Centers be once again reminded of priorities.  Could the Service also provide us a copy of its policy in regard to this practice being limited to cases of "gross error."

Response:  This has frequently come up in the context of panels, meetings, etc. The Service position has always been that if an officer catches an error in the context of a subsequent adjudication the officer may revisit the earlier adjudication and may reach a conclusion that is different than the first decision.  That said, we have all agreed that it is not the best use of resources to routinely readjudicate matters that have already been decided.



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III. THE FILING OF DIVERSITY VISA APPLICATION 3 MONTHS PRIOR TO VALIDITY

It has long been the Service policy to accept adjustment of status applications from Diversity Lottery winners three months prior to the currency of the "priority date" for case number.  This enabled the Service to begin scheduling interviews and processing these sooner, rather than having to wait for the mailroom, scheduling, etc. to get these cases through the system.    This then relieved the Service of processing crushing numbers of diversity lottery adjustment cases in late September.  The Buffalo District Office has advised our members that this sensible and useful policy has now been reversed.  Can you please advise if this is correct.  If the policy has been changed, why?

Response:  The Service has not changed its policy with respect to DV adjustment of status applications and still permits the filling of a DV adjustment application up to three months prior to the currency of the “priority date.”  We contacted the District Director at Buffalo and she confirmed that Buffalo continues to adhere to that policy.



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IV. EDUCATION EVALUTION

Problem:  Vermont Service Center has raised issues about accepting equivalency evaluations of combined academic credentials that have been submitted in order to satisfy a degree requirement on the ETA 750 labor certification application for purposes of qualifying a beneficiary for the employment-based second (advanced degree professional based on Bachelor’s plus five years of progressive experience) and third (professional) preferences.  It should be noted that the equivalency is based solely upon academic credentials; experience is not factored in. 

In situations where a person has a three-year degree from foreign universities such as Oxford and Cambridge that is evaluated as a four-year degree, the INS has accepted this in satisfaction of a Bachelor's degree requirement on the ETA 750.   In certain countries, e.g., India, South Africa, Australia, Canada, educational institutions issue two types of “first degrees” (bachelor’s):  1) three-year degrees, which are considered “general” degrees where students usually do not complete a specialization; and 2) four-year bachelor’s degrees.  It is our understanding that most university administrators and credentials evaluators do not consider the three-year degree from certain countries, with some exceptions, to be the equivalent of a U.S. bachelor’s degree.  However, where students with three-year degrees pursue further studies, by completing an additional year of study and obtaining a four-year bachelor’s degree or by earning a Post-Graduate Diploma through a one-year specialized program, these combined credentials would be recognized as equivalent to a U.S. degree for admission to graduate degree programs in the United States.

Recommendation:  Lobbyists propose that the INS implement a Service Center-wide policy accepting evaluations of combined academic credentials for equivalency to a U.S. bachelor’s degree that have been submitted for purposes of qualifying a beneficiary for the employment-based second and third preferences (assuming that there is no other reason to question the validity of the evaluation).  If it would be helpful, we can provide the Service with expert opinions from university representatives or credentials evaluators addressing this issue.  Such a uniform policy would serve to alleviate the problem of inconsistent adjudications while at the same time recognizing the diverse nature of educational systems throughout the world.

Response:  The Immigration and Naturalization Service has had discussions with the Department of Labor, the Employment and Training Administration and the Department of Education addressing the issues of foreign educational equivalency evaluations.  Proposed field guidance is currently under review internally to ensure uniformity in this adjudication.  We will be happy to share this guidance once it has been finalized.