Nebraska Service Center Teleconference- Business Line NAFSA Summary of NSC Responses to Questions. June 25, 2009

Transcription

1 Nebraska Service Center Teleconference- Business Line NAFSA Summary of NSC Responses to Questions June 25, 2009 Table of Contents 1. Ability to Pay Transfer Of Adjustment Applications To Unrelated Locations Checking Database For Updated Address Before Sending RFE Documentation in Support of I-140 Petitions Processing Form I-824 for Following to Join Derivatives... 6 Teleconference Participants NSC 1. Jerry Heinauer (Director) 2. Tom Barber 3. Alice Wiechert (ACD, I-765) 4. Steve Pollnow (ACD, I-485) 5. Joan Hamm (Immigration Liaison Specialist) 6. Ginger Bowser (ILS assistant) 7. Rita Stranik (sp?) (I-140 Senior Line Officer, filling in for Kris Crandall) AILA 1. Diann Bauerly 2. Rob Cohen 3. Susan Fortino Brown 4. Lisa Doran 5. Lynn Lee 6. Jane Carroll NAFSA 1. Margie Gooding 2. Deb Kuiken 3. Ann Lance 4. David Fosnocht 5. Kirsten Snyder Other 1. Thomas Barnett 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

2 Updates New Inquiries Process (see USCIS Service Centers- Scholar and Employment- Based Inquiries for more information). o Creating New Address: NSC has requested a new address for employment-based inquiries and expect to have it up and running by next week. In the meantime, continue to use the [ils.nebraska@dhs.gov] address. o Staffing: The Immigration Liaison Specialist (ILS) office is still able to keep up with queries through ILS inbox, and promises to keep the Director informed if additional resources are needed. NSC intends to offer the same level of service, but the box will be open to more people. As needed, NSC will shift resources to answer inquiries. NSC fully expects to have to have more staff working the box because more people will be using it; NSC may use CCS staff if ILS staff is not enough. o Follow up question: Will NSC differentiate between liaison and general public inquiries? NSC: All inquiries will be going to one box. NSC will be tracking inquiries to see what the workflow is, and may note whether inquiries were sent from association liaisons versus general public. But NSC doesn t expect to have any different response time to inquiries. NSC wants to maintain same attention to these as before. o Follow up question: Should inquiries be submitted on individual cases, or can AILA submit as a group? NSC: Please submit individually rather than in groups so that NSC can manage workload and track more easily. o Note: AILA is forwarding examples of NCSC responses to AILA national to discuss with HQ. Delays in card production o These should be back on track within 2-3 weeks and normal production time will be in effect at that time. At NSC, we are having less issues with delays than other centers. For NSC, card production usually occurs within 3 weeks. Backlogs and Processing Times o NSC continues to work down backlogs and processing times. I-485 is down to 150 cases. NSC is pre-adjudicating I-485s and expect to be within processing times by August Specialization and Transfer of Cases o By the beginning of fiscal year, NSC will have approximately 100 people adjudicating I-130s; NSC will be accepting some I-130 from the Vermont Service Center to assist with their backlog. NSC is working with SCOPS and other Service Centers to assist other Service Centers. 2

3 1. Ability to Pay The William Yates Memo of May 4, 2004 on Determination of Ability to Pay under 8 CFR (g) (2) (HQOPRD 90/16, posted on InfoNet at AILA Doc. # ) directs adjudicators that an employer has met its burden to demonstrate ability to pay if the employer submits credible, verifiable evidence that the petitioner is employing the beneficiary and has paid or is currently paying the proffered wage. Members report receiving RFE s on the employer s ability to pay the proffered wage on EB-2/EB-3 I-140 petitions based on an approved labor certification in situations where W-2 statements of the employee are submitted to establish that the employee has been paid the proffered wage, or in excess of the proffered wage, from the date of filing the labor certification onward. In situations where the employee only worked for part of the year in which the labor certification was filed, or where an employee worked for the entire year in which the labor certification was filed, but the employee s salary was raised in the course of the year to the proffered wage, the W-2 form, on its face, would not show that the employee was paid the proffered wage. If pro-rated, the W-2 would show that the employee was paid the proffered wage, or in excess of it, for the year in which the labor certification was filed. The RFE s in these instances state that the employer has not shown the ability to pay. Will the NSC accept documentation that establishes the beneficiary was employed for only a part of the year, and received the proffered wage for that portion of the year after which the labor certification was filed? NAFSA Summary of NSC Response (Rita Stranik- I-140 Senior Line Officer): In general, if a petitioner submits credible documentation that the beneficiary was paid from the priority date, the evidence would be accepted. However, if the W-2 only covers a partial year, the petitioner must also submit additional evidence to establish the dates employed, wages, etc. e.g. through pay stubs. If the employment period is short, the adjudicator may ask for additional documentation. Follow-up question: How short is too short? NAFSA Summary of NSC Response: 2 weeks might be too short, e.g. if the priority date is 12/15, and W-2 shows that the employer paid a certain amount of money with a start date of 12/15 from I-9 or pay voucher. AILA Note: in this actual case, the labor cert was filed 12/27, with a start date just before the end of year so the W-2 reflected a very small payment. Follow-up question: is this a change in policy? In the past, showing 12/15 forward would have been sufficient under the regulations, because it shows an ability to pay. NAFSA Summary of NSC Response: NSC examines these case-by-case; the adjudicator may request more information if the evidence doesn t establish ability to pay. 3

4 2. Transfer Of Adjustment Applications To Unrelated Locations AILA NSC Liaison has fielded several inquiries where adjustment application files have been sent to a district office which is unrelated to the applicant s residence or location in the applicant s biographic history. AILA has speculated that the only connection to the location might be something as tangential as the last admission at the port in the location where the file was transferred. Why would this kind of transfer occur? What procedures can attorneys follow to request that the local CIS office transfer the file back to the NSC for adjudication? NAFSA Summary of NSC Response (Steve Pollnow- ACD over I-485 line): Generally all EB adjustments that go to a field office for interview go through the National Visa Center (NVC). Presumably, the file is transferred from NVC to the district office where the alien is living, but based on this question, it appears that some may not be. NSC has no control of how NVC manages these cases, or how the district office schedules interview. NVC arranges, so NSC would recommend following up with NVC about these cases. If NSC has transferred the file to NVC, NSC would have no information except whether NSC has transferred to NVC. NSC hasn t heard of any other reports like this, so it doesn t seem to be a widespread issue. Follow up question: What files are referred to NVC for an interview? NSC: Anyone who is EWI, has a database hit, or where there is a question about marriage fraud, employment, or anything else that an adjudicator thinks warrants a personal interview- those cases are transferred to NVC for referral to district offices for an interview. 3. Checking Database For Updated Address Before Sending RFE AILA members report receiving RFEs for employment-based I-485s, where the I-485 has been pending for many months, if not years. In the interim, the attorney representation might have changed, or addresses for the applicants or the attorney might have changed. These address changes are updated through calling the NCSC and/or electronically filing an AR-11. Because these RFEs often have a 30 day response time, it is important that they are sent to the updated address. One member reported that her client changed address, and in addition, her client stopped using her former attorney. An RFE was sent to the old attorney, and also to the client s old address. The former attorney sent the RFE to the client, losing about 10 days in the process. The RFE sent to the client s old address was eventually forwarded by the post office to the client, but again, about 10 days were lost in the process. The client only contacted the new attorney after receiving the RFE, so the new attorney could not have had a G-28 on file before this point. The new attorney was able to respond, but with only 1 day to spare. The filing of an AR-11 in this situation did not help, because either the system was not updated with the new information, or the adjudicating officer at the NSC did not check for an updated database in the system before issuing the RFE. Could adjudicating officers please be reminded to check the appropriate system for 4

5 address updates before issuing? In the alternative (or in addition) could a longer lead time on RFE responses be provided to account for the mail delivery issues on long pending applications? NAFSA Summary of NSC Response (Steve Pollnow): Regarding address updates in CLAIMS, NSC officers do not check databases for hanging address changes. NSC has forwarded this question on to the NSC records team and USCIS headquarters to see if this is a front-end communication issue. NSC is not sure that the AR-11 database automatically updates CLAIMS. Follow-up comment: If someone calls the NCSC to submit an address change, s/he must provide the NCSC information officer with all receipt numbers for every filing, e.g. each I-485, I-765 for each family member (note: for a typical family with a beneficiary + spouse and 2 kids, this might be up to 12 different receipt numbers). Often what happens is that the address change only goes into one receipt number and not all filings. NSC: NSC recommends that AILA follow up with USCIS headquarters about making the address change process easier. Make sure you have all receipt numbers so that each filing is updated. Mr. Aytes set up NCSC to handle these types of tasks. It doesn t make sense for an adjudicator to do address changes; USCIS prefers that an $8/hour information officer update address changes. 4. Documentation in Support of I-140 Petitions At the AILA annual conference, there was discussion about the Service Center's preference for the submission of documentation in support of I-140 petitions, particularly for Extraordinary Aliens in the Arts & Sciences, Outstanding Researchers and Professors, or national interest waiver cases. Please confirm that NSC does not accept documentation in electronic format such as flash drivers or CD-Rom, but nevertheless prefers copies of entire published articles and not just the first page. NAFSA Summary of NSC Response (Rita Stranik): Computer security requirements prohibit NSC employees from using external media, so adjudicators cannot accept a document in electronic format. If it is a lengthy publication, it is not necessary to submit the full publication. For articles authored by the beneficiary, submit the first page that includes the title, author, publication date, as well as the first 2-3 pages of article. For articles citing the beneficiary, submit the 1 st page + any pages that cite the beneficiary, as well as the entire bibliography/work cited section. It is helpful if you highlight the beneficiary s article in bibliography; otherwise, it is very difficult to pick out the beneficiary s article. 5

6 In addition, NSC is open to accepting a printout from SCIFINDER, PubMed, or Google scholar as long as it is in the appropriate format that includes enough information (title, author, publication date of the paper that is citing the alien s work). Do not use the format that just lists the number of times the beneficiary s article has been cited. NSC needs a full list of the articles that cite the beneficiary to ensure that they are independent citations, not just beneficiary/collaborators citing their own work. Exclude or flag citations of the beneficiary s own work. Sometimes the adjudicator may also need to check whether et al authors include the beneficiary/collaborator. Re: unpublished manuscripts, NSC is not interested if it has not been published yet, even if has been submitted for publication. With respect to additional documentation, does NSC find the CV of authors of supporting letters valuable (recognizing that often the CV can be 20 pages or more)? NAFSA Summary of NSC Response (Rita Stranik): The CV of the author of a supporting letter is of little import because the adjudicator is concerned about the beneficiary, not the person who wrote the letter. The author of the supporting letter can explain his/her title and qualifications sufficiently in the letter, but note: letters alone can t establish eligibility, and are just supporting evidence. Is there a preferred order to submitted documentation, or is it sufficient to include an index? NAFSA Summary of NSC Response (Rita Stranik): There is no particular order that is preferable, but index and tabbing makes it easier for an adjudicating officer to locate evidence that could be used under multiple criteria. It is also helpful if the evidence is in an order that follows the criteria, e.g. awards, membership, etc. Note: If you use letters and numbers in an index, make sure they are on the specific items as well. Note: NSC just created a list of suggested best practices for an updated I-140 FAQ although it is not up on the USCIS web site yet. 5. Processing Form I-824 for Following to Join Derivatives If the principal applicant applies to adjust status while the derivative will be consular processing, will NSC accept Form I-824 concurrently with the I-485, or should counsel wait until the I-485 is approved before submitting Form I-824? NAFSA Summary of NSC Response (Tom Barber): You can file the I-824 concurrently with the I-485 or you can file later. But it is easier for NSC by far if these are filed concurrently so they are all part of same file at the time of data entry. If filed later, NSC has to match it to the prior principal s file, so it is to the 6

7 filer s advantage to file concurrently. Next call: July 23 re: Refugee/Asylee issues 7