Written Answers from the INS in Connection with the AILA/INS HQ Adjudications Liaison Teleconference, August 15, 2000

PROPOSED AGENDA OF THE AILA/INS HQ ADJUDICATIONS LIAISON
TELECONFERENCE, AUGUST 15, 2000

What is the status of the proposal to permit concurrent filings of I-140 petitions and I-485 applications?

ANSWER:  ISD intends to implement this process in FY 2001.  We intend to publish a notice in the Federal Register announcing the change by December 31.

In our last meeting, we noted that I-824s and O petitions were not included in the target processing times.  Has clarification been issued to emphasize the importance of  these petitions?  If so, what processing time targets were given?

ANSWER:  The Center Directors have been made aware of your concerns surrounding the processing of these cases.  HQ SCOPS has not issued processing expectations for these specific case types.  Due to limited resources, our resources have to be strategically placed to address numerous priorities.  The directors are empowered to work cases such as these within available resources.  While the Directors are all aware of your concerns their staffing levels have not increased making it difficult to meet customer expectations on all cases.  Each of the Centers has a method in place whereby expedite requests can be made in cases where processing is critical.

Where does INS stand with respect to development of H-1B regulations under ACWIA?  In particular, what position will the regulations take with respect to approving H-1B status for the fully authorized period of six years’ presence in the U.S. in H-1B status, and not counting time outside the U.S. toward that period. (In the latter regard, please see Attachment A, a summary of the current state of the law and a recommendation for interim procedures pending finalization of ACWIA regulations.)

ANSWER:  A Notice of Proposed Rulemaking implementing the outstanding provisions of ACWIA has been drafted and is currently under review by the Department of Justice.  The Notice does address this issue.  We cannot discuss the approach the regulation will take but welcome AILA’s comments as part of the Notice-and-comment process.

As discussed in our last meeting, has the idea of processing EADs simultaneously with the fiancée petition been explored?

ANSWER:  We are beginning to explore this issue, but have not yet reached a decision.

What is the progress of reengineering team’s review of how N-336 requests and motions to reopen are treated at the district offices?  Are you in a position to address our suggestion that INS either treat motions to reopen/reconsider erroneous naturalization denials in a separate queue from other N-336 appeals or develop a policy to provide cases marked “erroneous naturalization denial” with expedited/priority processing?

ANSWER:  The Immigration Services Division’s Business Process and Reengineering is not currently reviewing the processing of N-336 requests and motions to reopen/reconsider at District Offices.  We will not be setting up an expedited processing system, either through policy guidance or separate queue, for “erroneous” N-336 reviews and motions to reopen at this time.  Until the Service actually reviews the evidence submitted as part of the N-336 or motion to open/reconsider, there is no way of determining if the denial in question was in fact “erroneous.”

Where does INS stand on its review as to the feasibility of extending employment authorization to E, L and H dependents?

ANSWER:  The proposal would require regulatory change.  We continue to explore the merits of the proposal and welcome AILA’s input as to the need for this expansion of employment authorization for those individuals.

In our September 22, 1999 agenda, INS stated that it would get back to us on the question of procedures for individuals to submit (interfile):  (i) adjustment documents for a spouse acquired after the I-485 was filed but before it was adjudicated;  (ii) an I-824 application to request consular notification for a spouse acquired after filing but before adjudication of the I-485?  Similarly, what procedures should be followed in either case if the principal’s I-485 is approved before the spouse’s information has caught up with the file?

ANSWER:  Since, no specific details are mentioned, the assumption is, we are referring to a “principal” applicant, who acquires a spouse, during the time his/her I-485 is pending.  For (i) and (ii) the procedures most of the centers have found to work best is to “flag” the documents.  That is, the applicant or legal representative attach a brightly-colored cover sheet on top of the documents, and indicate that the “principal” applicant has a pending I-485.  Be sure to provide the A-number of the principal’s case and indicate the applicant’s relationship to the principal.  The adjudicating officer can then obtain and review the “principal” applicant’s case prior to processing the “spouse’s” case.

If the principal’s I-485 is approved before the spouse’s information has caught up with the file, the adjudicating officer can easily access the system (database) to obtain the current status of the “principal’s” case.  To expedite matters, the applicant/legal representative could provide a copy of the Form 797, Approval Notice, with the spouse’s documents, if the case was approved prior to the spouse filing his/her adjustment application.

INS has previously indicated that a regulation would be forthcoming on extending the “dual intent” concept for automatic advance parole to other nonimmigrants.  What is the expected timing of that regulation?  What nonimmigrant categories do you expect to include in the concept?

ANSWER:  INS has not indicated that a regulation extending dual intent would be issued.  Rather, INS indicated in an interim rule that it would consider comments on this subject.  To their credit, AILA submitted very detailed comments.  The final regulation is still in the clearance process within INS and there are only a few issues that remain to be resolved.  Once resolved, we will move the rule forward for Department clearance and subsequent publication.  We hope to get these issues resolved within the next several weeks.  This is a final rule.  The interim rule was published on June 1, 1999.  The comment period closed on August 2, 1999.

Please report on the status of policy memoranda and/or proposed regulations for the revisions to Section 203(b)(b)(2) by HR 441 for physicians in shortage areas and VA hospitals.  In the same vein, on October 4, 1999, Executive Associate Commissioner Michael A. Pearson issued a memorandum providing guidance on Section 212(e) waivers for physicians subject to Section 214(l) of the Act.  In early January, AILA submitted comments (see Attachment B) regarding aspects of the memorandum which misinterpreted the law.  Please inform us of the status of INS review of AILA's comments on the memorandum, whether a revised memorandum will be issued and when, and whether issues addressed in the memorandum will be addressed soon in regulations.

ANSWER:  The interim rule implementing National Interest Waivers for physicians is currently at OMB and we expect publication soon.  Regarding the memorandum, INS is reviewing AILA’s comments.  A revised memorandum will likely be issued, although we cannot provide a timeline.

As previously discussed, I-797 receipts, as well as the TIERS system, name estimated processing times that are not at all accurate.  For example, receipts for I-485s may say that processing is within 180 days, when in fact processing is several years in length.  I-129 receipts may say 30 days when the actual time is closer to four months.  Many petitioners and beneficiaries are misled by this, and make plans based on such timing.  Also, this adds to the burden of INS information officers, who must field calls from petitioners and applicants who are falsely led to believe that their filings are pending beyond the normal processing time.  In our last teleconference, you indicated that INS is attempting to put more accurate processing time information onto its website.  What is the progress of that effort?  In addition, it was suggested that the Receipt Notice refer people to this website information.  Is INS planning to adopt that proposal?  What is the timetable for that?  (Jerome)

ANSWER:  A standardized format for the report has been developed.  ISD is working with HQ Statistics to ensure accurate computation of processing times by application.

As previously discussed, it appears that HQ has issued new instructions to the Asylum Offices stating that, if a dependent of an asylee (principal’s asylum application was approved) turns 21, the dependent must file a new asylum application and have his or her fingerprints cleared before being granted new asylee status.  Furthermore, these instructions apparently require that the dependent be given a new priority date, based on the date the fingerprints for the new application are taken.  There is nothing in any body of existing law that compels, or even sets a precedent for, a priority date based on the date that fingerprints are taken.  This change has a profound effect on dependents, for whom the priority date governs the date on which they are eligible for file for adjustment of status.  We ask that the INS re-confirm the long-standing policy of allowing the dependent to retain the priority date of when the principal was granted asylum.

ANSWER:  The question has been forwarded to the director, office of International Affairs, for direct response to AILA.

The Service Centers, as specifically illustrated by NSC, seem to have recently experienced an alarming loss of institutional memory.  This has occurred primarily in the H-1B cases and has been exhaustively discussed with NSC beginning in liaison meetings 11/8/99 (at which ISD’s emphatic response to Item 7 on the 9/99 Headquarters agenda was cited).  Discussions have been unproductive to date, and problems persist.  Issues that keep coming up are:

a.  RFEs that ignore definitions of specialty occupations and references to Dictionary of Occupational Titles, Occupational Outlook Handbook and SVP (settled in prior ISD statements).

b.   RFEs addressing issues that have already been resolved (e.g.: EB-1 preceded by L-1, EB-1 Extraordinary Ability preceded by O-1, substantially identical Hs and Ls denied after dozens of approvals for same employer, H,   L, O or TN extensions denied with no changes in underlying facts), where no evidence of fraud or gross error exists or is articulated (See Item 7,notes from 9/99 meeting).

Has any policy changed that would affect these, and if not, could ISD mention again to the Service Centers that these issues have long been settled on a national policy level?

ANSWER:  With the implementation of the Standard Operating Procedures (SOP) ISD is confident that many of these kinds of problems will be significantly reduced or eliminated completely.  However we have raised the questions with the NSC and are awaiting a response from them regarding these issues.  It is difficult to provide an accurate response without specific examples (cases) of the problems encountered.  There has been no policy change and ISD has indicated a look at this issue and invited any input you might have.

Will Service Centers consider expediting I-140 adjudications for beneficiary's approaching 6th year limit on H-1's or the 5 or 7 years limits on L-1's?  In the ISD teleconferences, Fujie Ohata has indicated that it is the Service Centers’ goal to reduce processing times on I-140s to 90 days by the start of the fiscal year.  If that goal is not reached and maintained, will an expedite policy be instituted?  Also, are we correct in assuming that the 90-day goal will not be considered to have been reached unless the Service Centers’ backlogs of older cases also are cleared?

ANSWER:  No.  The Centers will not expedite, in blanket fashion, all I-140s where the beneficiary’s nonimmigrant status is approaching the maximum limit allowed by regulation.  The Centers, however, will consider requests for expedite when they meet one of the published expedite criteria.

It is unclear what is meant by “older cases” in this question.  The 90-day processing time will have been considered to have been met at an individual Center when all categories of I-140s are being given adjudicative review within 90-days if receipt at the Center.  If there are outstanding cases that have been returned to INS by the consulate or are pending receipt of response to an RFE, these cases will not prevent the Center from meeting the 90-day processing goal.

Has there been any progress on new regulations relating to H-2B status?  What is the timetable for these regulations, and who is working on them?

ANSWER:  These regulations are currently in development by the Office of Adjudications, Business & Trade Services Branch.  It is unlikely that these regulations will be issued this year.

To what extent do INS adjudicators who processed a case have access to the AAO?  Do they provide the AAO with information other than what is in the record?  Does the AAO call on them for clarification of issues?  Have you had a chance to check with Terry O’Reilly on this issue?

ANSWER:  INS adjudicators have access to the AAO in order to seek guidance or ask questions regarding precedent or judicial decisions.

It is the feeling of the management of the AAO, that discussing a specific case on appeal with the original adjudicative officer or seeking clarification from that individual, could potentially be seen as allowing additional evidence into the Record without providing the applicant/petitioner review rights.  This practice is discouraged at the AAO.  If such information became available to the AAO, the appropriate action would be to remand the case for further processing, thereby affording the applicant/petitioner an opportunity to address the new information.

The Administrative Appeals Office (AAO) is an autonomous appellate body.  Under the direction of the Associate Commissioner for Programs, AAO currently exercises appellate jurisdiction over 46 applications and petitions from other Service offices.  All lines of communication are kept open at the AAO, and calls are routinely received from members of the public as well as other Service entities.  These calls generally pertain to status inquiries or case processing matters.  AAO officers do not communicate with other Service adjudicators concerning substantive matters relating to a specific case.  AAO officers adjudicate cases based on the record of proceeding and do not solicit additional information from Service adjudicators.  If the record is unclear, cases may be remanded to the original office for clarification.

As recently as February 26, 2000 the INS Asylum Office in Chicago informed us that pursuant to INS/HQ instructions, the Asylum Office has no jurisdiction to accept or adjudicate Form I-881 (NACARA Application) if no asylum application is pending before that office.  We understand this is true whether or not a charging document (i.e. OSC or NTA) has been issued, or served on EOIR, or even in cases where the Immigration Judge has terminated the proceedings.  Since the EOIR does not have jurisdiction to hear any case unless it is served with the charging document and proceedings are pending before it, this instruction deprives many NACARA applicants a forum in which to file and proceed with their NACARA applications. You had referred this question to the Office of International Affairs.  Have they responded as of yet?

ANSWER:  Under the interim regulations, jurisdiction over NACARA applications is split between the INS and EOIR.  Anyone who has been placed in proceedings before EOIR may apply for relief before EOIR.  The Asylum Division’s jurisdiction over NACARA applications is limited to those ABC class members who have asylum applications pending with the INS under the terms of the settlement agreement and to their qualified dependents.  (Note, the Asylum Program also has jurisdiction over certain former Soviet Bloc nationals with asylum applications pending before the INS, but the question is directed toward ABC class members.)

The policy decision to limit jurisdiction was made to prevent fraud.  Without this limitation, anyone could submit a NACARA application to the Service Center claiming to be a registered class member and immediately get employment authorization.  Because of the limitations of the registration databases, determination of whether an individual is actually registered for ABC benefits takes a significant amount of time and often cannot be determined without interviewing the individual.  This would not be feasible at the application stage.  Therefore, we limited INS jurisdiction to the known universe of those who had already timely submitted asylum applications under the terms of the settlement agreement.

It should be noted that normally only individuals who are in proceedings can apply for suspension of deportation or cancellation of removal.  Suspension and cancellation have never been viewed as benefits that can be applied for affirmatively.  Rather, they traditionally and, still in general, are forms of relief from deportation or removal that may be applied for only in the context of deportation or removal proceedings.  The regulations implementing NACARA created a limited exception to that rule for purposes of administrative efficiency.  The Department determined that it was more efficient to have asylum officers adjudicate the NACARA applications of those beneficiaries who already had ABC asylum applications pending with the INS (the majority of the NACARA beneficiaries), rather than have the applications adjudicated in immigration court after completion of the asylum process.  However, the limitation of jurisdiction leaves some unknown number of registered ABC class members, including those who registered by applying for TPS but never applied for asylum, without a readily available method to apply under NACARA.

Individuals who are not in proceedings before EOIR and not eligible to apply for NACARA relief with INS have no forum to apply for relief.  The only mechanism getting into proceedings at this point is for the individual to go to an INS District Office and ask the District to place the individual in removal proceedings.  The District would then issue a charging document, listing the specific inadmissibility or deportability charge, and file the charging document on the appropriate immigration court.  This is a somewhat time consuming task.  The NGO community informs us that most Districts will not issue charging documents upon request, generally referring to prosecutorial discretion and lack of resources.  We have informed the NGO community that the Asylum Offices may, at a later date, consider honoring requests to issue charging documents to individuals eligible to apply for relief under NACARA.  However, for now, we believe a more appropriate use of resources is to focus on adjudicating the NACARA applications that are pending before us, rather than divert our limited resources to the issuance of charging documents.  At the current time, Asylum Offices are willing to consider issuing charging documents on request in cases with special circumstances.  For example, am Asylum Office issued charging documents to a young child whose parent had been granted relief under NACARA by an immigration judge, but the child, who was also eligible to apply, had no forum to apply.

On August 31, 1999, Frances Berger, then the chair of AILA’s Students Issues committee, sent a letter to Jackie Bednarz regarding optional practical training for Master’s students.  That letter, and a subsequent letter to Tom Simmons, is at Attachment C.  This subject, too, is of considerable interest to our members.  Could it also be answered at this time?

ANSWER:  Unfortunately, there is nothing in writing (e.g. guidance memos, reg.) that addresses this issue.  According to what is currently available in writing, a student’s departure from the U.S. for over five months constitutes a break in status and “re-starts” the clock for optional practical training (OPT).  Thus, a student who goes back to his home country for five months plus one day and then returns as a student to the U.S. would be eligible for OPT, after he completes the nine month in-status requirement.  The intent behind this position is two-fold:  1) to prevent students from giving higher priority to student-based employment than the actual coursework; and 2) to allow for the continuation of a student’s program for the summer or during a period of absence without breaking the “papertrail.”

There is nothing in writing that affirms the same result if the student were to break F status for five months and one day without leaving the country.  Rather than announce policy decisions in an informal setting, the Business & Trade Services Branch of the Office of Adjudications will be drafting a memorandum exploring whether a significant break in student status (longer than temporary absence as outline in 8 CFR 214.2(f)(13)) meets the original intent of the guideline, whether the student is physically located inside or outside of the U.S. during the break.

A July 27, 1999, letter from Stephen Yale-Loehr and Fred Voigtmann AILA’s Investor Committee Co-chairs, to Linda Dodd-Major raised a series of questions related to processing of applications under the EB-5 program.  (A copy is enclosed as Attachment D.)  No answers to those questions have been received as of yet.  AILA would greatly appreciate if you could address those questions at this time.

ANSWER:  Due to the ongoing litigation involving the EB-5 program, we are unable to provide this response at this time.

It was previously indicated that INS was planning a Federal Register notice for the spring of 2000 regarding the system for counting H-1Bs subject to the cap.  Spring is now past.  Is that notice still planned?  Will INS delay finalization of its new I-129 H form until there has been a chance to comment on the H-1B cap counting system?

ANSWER:  The proposed rule is under review by the Department of State.  It continues to be the INS position that effective and fair management of the H-1B cap must involve public participation.  The Notice of proposed Rulemaking referenced in the answer to question 3 above also addresses counting procedures for the H-1B petition.  Additionally, INS acknowledges its ACWIA mandate to amend the petition, Form I-129, to ensure greater employer understanding of whether the alien beneficiary will be subject to the H-1B cap.  INS received the AILA and other public comments to the proposed changes to the Supplement H but will not finalize that supplement at this time.

Please clarify for us how INS is planning to use the information obtained in the file audits that are being conducted at all offices.  We understand that a goal of the audits is to obtain information for INS to recapture lost user fee account revenues.  How can AILA assist you in this effort?

ANSWER:  As an intrinsic component of the annual financial statement required of all Federal agencies, the INS is conducting an FY 2000 inventory of pending applications.  The inventory provides information supporting the calculation of deferred revenue as of September 30^th.  The deferred revenue calculation, which states aggregate fees received for applications not yet completed, is a necessary element of the agency’s annual financial posture.  To date, the agency has completed two “trial” inventories, in May and July, and is actively preparing for the official fiscal year-end inventory.  While the INS appreciates your offer of assistance, the effort is wholly internal involving coordination among a number of offices.