Cite as "AILA InfoNet Doc. No. 00012772 (posted Jan. 27, 2000)"
VSC/AILA Liaison Teleconference Minutes
January 12, 2000
Prepared by: David Grunblatt, Chair, VSC Liaison Committee
Of great concern to
those practicing in the Vermont Service Center jurisdiction was the
announcement of a “pause” in processing of H-1B petitions and the indication
that there would be future “pauses”. It
seems inappropriate that this jurisdiction should be “penalized” for being
efficient! What has been the impact of
this policy? Do you have any input in
reversing it or minimizing its effects, here?
The impact to the VSC is primarily
that the 'pauses' cause our backlogs to go up significantly which, in turn,
makes it more difficult to manage our resources once the 'pause' has been
lifted. For impact other than backlogs, please address this issue to HQ. As to
input, the VSC has as much input as do the other three centers. HQ is trying to
administer a program that is fair to petitioners regardless of where they file.
Policy, therefore, is set at the HQ level and we suggest your concerns might be
better voiced to them.
When such “pauses
take place” is the VSC continuing to adjudicate H-1b petitions which are not
subject to the cap? If not, why not?
This depends on the meaning of the
word, 'pause'. Some 'pauses' have included all H-1 petitions while others only
affect the 'cap' cases. If the 'pause' only affects 'cap' cases the VSC has
continued to adjudicate the non-cap cases.
AILA Committee Comment:
The VSC indicated that they separate “cap” and “non-cap” cases but
conceded that during the last “pause” both cap and non-cap cases were affected.
We are assuming
that this “equalization” program has something to do with more efficiently
determining the “cap” on H-1B’s. Are
there any projections at this time? Is
there any other information that we can provide to members with regard to
reaching the cap and appropriate subsequent procedures for filing?
We have received no information on
our proximity to the cap, nor have we received any instructions regarding what
the Service will do if and when we reach the cap.
Related to the
issue of the cap, there is still a lot of confusion on the proper way to
complete an I-129 form to properly identify “cap” and differentiate them from
“non-cap” cases. A memorandum to all
Service Center Directors from Fujie Ohata, Associate Commissioner dated
December 9, 1999 attempts to clarify this issue but in some ways adds to the
introductory paragraphs, the Associate Commissioner states that “our current
policy is that only H-1B cases that count against a numerical limitation are
petitions for new employment…. Only petitions that are marked “2a 4a” and “2a
4b” in Part Two of the I-129 petition are considered new employment for
One of the
samples illustrates this point by indicating that new employment for an H-1b
holder already in the United States in H-1B classification should check box 2a
and 4c. Is this also “checked” for an
individual who is currently in another status (e.g. B-2) who is changing from
B-2 into H-1b status based upon an H-1b petition already previously
approved? This is our understanding
based upon a discussion prior to the last liaison meeting.
HQ is working on a document which
will further define 'cap' cases. Once the definition is published HQ can then
decide how best to count cases defined as cap cases. The count may be based on
the way the petition portion is completed or it may be based on the information
regarding the beneficiary. We expect such a memo to be published in the next few
weeks. At this time we agree that there is confusion as to what is a cap case
and how notations to the petition potentially affect the count, but we can
offer no guidance until additional policy has been received from HQ.
Will a petition be
rejected if it is not in compliance with this memorandum if a petitioner is in
fact executing Section 2 and Section 4 according to the “plain meaning” rather
than the policy described in the December 9th memorandum?
HQ has issued no policy regarding the
rejection of cases because of the way information has been entered.
AILA Committee Comment:
VSC indicates that they do review the petitions and will process them in
the appropriate classification (cap or non-cap) based upon substantive
When one calls the
“information line” concerning information as to pending H-1B petitions, the
recording gives the later “Notice Date” as the “Received Date”. Why is that? Often there is a differential of a week or more.
The automated system gives out
information on a case, based on what is reflected in the case history. Although the physical date we receive a
petition (stamped in by mailroom) is reflected in the system and prints on the
receipt notice, this date is not reflected in the case history portion of the
system, and therefore, is not part of the automated phone system’s information.
VSC sorts case types, and case backlogs in general based on the actual physical
receipt date and not the date a case was put into our system by our contractor.
I-129’s and Extensions Generally
What is the policy
of the Vermont Service Center with regard to the “commencement date” resulting
from the adjudication of an application for “change of status” or “extension of
stay”, where, the application or petition was filed before expiration of the
previous status but the adjudication occurred after that expiration date. Given the draconian consequences of
“unlawful status” in the United States we are requesting that the Center
implement a policy of setting the commencement date as of the expiration of the
previous status unless an alternative date has been specifically
working a timely filed I-129 where the petitioner has requested an extension of
the status for the beneficiary, VSC will close the “gap” and grant a
commencement date effective as of the expiration of the previously accorded
status. This is consistent with
regulations at 274a.12(b)(20) which authorizes a beneficiary of a timely filed
petition to continue working for the same employer for a period not to exceed
240 days while the extension request remains pending before the Service.
regulations are clear with regard to H, O, and P nonimmigrant classifications
where here has been a change of status requested for the beneficiary by the
petitioner. For example, regulations at
If a new H petition is
approved after the date the petitioner indicates that the services or training
will begin, the approved petition and approval notice shall show a validity
period commencing with the date of approval and ending with the date requested
by the petitioner…
Although the regulations concerning other nonimmigrant classifications
(e.g. L) may not specifically state the validity commencement date to be used,
VSC is guided by the aforementioned regulation and grants a validity period
commencing with the date of approval.
Since the beneficiary is not authorized employment until such a time
that the petition is approved, we will not close the “gap” by granting a
commencement date prior to the date of approval.
It is also
noted that granting a commencement date earlier than date of approval would not
be consistent with statute as it regards limitations in L status. Since a beneficiary would not have actually
been in L status for any period preceding the date of approval, he/she may be
adversely affected since this would be time counted towards their 5/7-year
limitation of stay in the United States.
While some may argue that losing this time would be preferable to the
unlawful status alternative, VSC feels that existing regulation and intent
thereof would support our position on this issue.
Committee Comment: The
committee pointed out that establishing a retroactive commencement date would
not necessarily be problematic with regard to losing time towards the five year
or seven year maximum as it could be adjusted subsequently. However, the VSC did point out that there
would be technical problems with failure to comply with the terms of the L or H
visa retroactively. The dilemma remains
given our concern with regard to “unlawful status” and it seems that this issue
must be handled at a policy or regulatory level.
Can an L-1 petition
be filed prior to accumulation of the one year overseas experience abroad in
anticipation of an approval date after the one year requisite experience has
short answer – we would hold based on the regs as they apply to the
adjudication that the one year must have been completed at the time of the
filing. However, as you probably know,
the regs pertaining to inspection and admission indicate that the year has to
have been completed by the time of inspection and entry. Therefore, there is a curious little twist
where the two sets of regs appear slightly contradictory. As you know in all such cases, we defer to
HQ to make these calls – you may want to raise this issue with them.
have pointed out that there seems to be a higher incident rate of
“questionable” RFE’s in the case of doctors.
Specifically a member reports that an H-1b filed for a doctor working
for a new hospital was required to submit the test results of all three parts
of the USMLE which obviously had to be submitted previously for his already
obtained H-1 petitions. Is there
special training with regard to so-called “doctor” cases? Were these simply isolated incidents?
documentation to be submitted with any H-1B extension, VSC reserves the right
to request additional evidence to support the approval of a petition. In the case where a doctor is seeking
employment with a new hospital as a physician, an adjudicator may request
evidence of USMLE test results to ensure that the beneficiary is qualified to
perform said duties. Typically, we
tend to see petitioning hospitals submit copies of test results with each
Keep in mind that it is possible that the previous H-1B position held
by this beneficiary may not have been as a physician. If this had been the case, the Service would not have had prior
evidence of USMLE test results.
reduce the possibility that a petitioner will receive a request for evidence
that he/she would consider questionable, VSC would suggest that a complete body
of evidence be submitted with each extension of stay request.
We discussed at the
last tele-conference how to interpret the Service Center Processing Time Report
and its relation to “real world” reports as to backlogs for I-485
applications. The VSC reported at our
last tele-conference that the processing report gives the backlog for the “mass
of filings for that given month”. Does
the VSC have statistics as to how many cases or what percentage of cases are
backlogged beyond the time indicated on the Processing Time Report? Do you have statistics as to the “average”
backlog of that particular group of cases?
No, we do not
have statistics for what percentage are backlogged beyond the time indicated on
the report, nor do we have statistics as to the “average” backlog of a
Committee Comment: VSC
explained that it is difficult to track these cases, since they can be out of
the prescribed time for a number of difference reasons, e.g. awaiting receipt
of a file; awaiting re-fingerprinting; awaiting submission of an additional
document. VSC can only recommend individual
follow up on cases which are clearly beyond the published processing times.
Now that the “CIA”
issue has been resolved, can we expect a surge in adjudication of I-485
applications? Has the VSC completed
those temporary projects that have stopped the processing of I-485
adjudications? What can we expect in
the coming months?
are planning to give I-485 training later this month and expect to start
adjudicating by late January or early February.
Committee Comment: VSC could
not make any projections as to movement of the backlog once adjudication of
I-485 applications begins again.
What is Service
policy with reference to the validity of an I-485 application already pending
with the Service where the underlying basis for eligibility has changed. Or, alternatively, the applicant is eligible
under two categories and wishes to shift from one to the other. e.g.
An applicant filed adjustment of status to “accompany” a principal and
subsequent to that, has an I-140 petition approved on her own account and
wishes to use that as the basis for adjudication of the application for
adjustment of status (perhaps a divorce is immanent and the original
eligibility may eventually terminate).
are still awaiting guidance from Headquarters on this issue.
Would there be a
different policy with regard to changed basis of eligibility, if the new basis
is one which normally does not come under the jurisdiction of the Vermont
Service Center, e.g. an approved I-130 based upon marriage to US citizen.
We are still awaiting
guidance from Headquarters on this issue, as well.
What is the procedure
for notifying the Vermont Service Center as to changes in corporate structure
for a corporation or entity which has been granted “sole jurisdiction” in the
Vermont Service Center. e.g. The approved company has acquired a new
subsidiary or has spun off additional subsidiaries.
Several weeks ago HQ directed the
Service Centers to put a hold on adjudicating requests for sole
jurisdiction. We believe that HQ is
assessing whether or not to continue with the sole jurisdiction program and we
expect them to publish policy on this issue. With reference to the specific
question - When a corporate entity, covered by a sole jurisdiction agreement,
finds its structure has changed, they should contact us in writing and let us
know. If we feel that certain notations need to be made on subsequent filings
because of the structural changes of the company, we will notify the company.
AILA Committee Comment:
VSC expressed its concern with the “Sole Jurisdiction” program as
requests seem to be made disproportionately for jurisdiction within the Vermont
Service Center. From an administrative
perspective, maintaining lists of “sole jurisdiction” petitioners and administering
the program from their point of view, drains resources. It was the committee’s position that the
amount of cases involved is not that extensive and the program provides a
significant and appropriate service to employers who want to process their
petitions in an efficient manner.
I-140 and RFE’s
As you can imagine, the
dialogue between Attorneys and the Government with regard to what we perceive
as inappropriate RFE’s goes on with each of the Service Centers. The NSC Director indicated in a discussion
reported on November 8, 1999 that they would be developing paragraphs keyed to
each specific category of evidence and “only those paragraphs relating to a
case will be included in an RFE. Each
such paragraph entered on an RFE will bear an additional phrase or sentence, in
bold face, reflecting the Officer’s specific objection, question or
comment.” We have seen such a format in
some of the VSC cases. Is this being developed
as a broad policy nationwide?
VSC uses “standard paragraphs” that parallel statute, regulation, and policy
and procedure memoranda. We are not
aware of any nationwide initiative to standardize the language of RFEs at all
four Service Centers.
Would you please
reiterate the policy or procedure for requesting “expedite” of I-140
petitions? We had a specific instance
where a request was made to expedite such a petition in an “age out”
situation. The request was made in
writing and remains unanswered. Should
the request be made telephonically?
Should such a petition be filed through an alternative procedure?
The reason for requesting expeditious processing must be due to
emergent reasons, humanitarian reasons, a financial loss, or Service error.
Expedite criteria is the same for all cases adjudicated at the Service Center. When considering whether to grant an
expedite request for an I-140, a Business Product Line supervisor will weigh
all factors, including the detrimental effect on other petitions that had been
filed earlier than the case in question.
typically expedite an “age out” I-140 if the contractor brings it to our
attention at the time it is received.
If it is not brought to our attention, an “age out” I-140 will generally
be expedited upon the receipt of a telephonic request from the petitioner or
the attorney of record. Written
requests for expedites sent along with the filing of a petition, or mailed in
as correspondence do not generally constitute an expedite request at the VSC. All expedite requests must be made
We have heard from
Washington that all the Service Centers had been advised of the change in law
with regard to national interest waivers for FMG’s as effected by the Nursing
Relief Act. However, there are still no
regulations. Are the Service Centers
acting on these petitions, or holding them in abeyance?
As of the date of this tele-conference,
instructions from Washington are to hold these petitions in abeyance until an
interim policy directive for administering these petitions, absent regulations,
F-1 “Optional Practical Training”
If a student is
granted one year practical training and after having worked five months in that
status, changes status to H-1 and then wishes to return to F-1 status to pursue
a new academic program will he or she be entitled to an additional seven months
of practical training? What is Center
policy with regard to “unused” practical training?
Once an F-1 begins working with the their EAD for
practical training purposes, there is no way to “recapture” any unused portion
of the card. The Service policy for
“recapturing” practical training time, requires that the card and the request
to withdraw the practical training be turned in prior to the card being valid.
allow for one period of optional practical training not to exceed 12
months. There currently is no service
policy or regulation allowing an F-1 student to receive another period of
optional practical training simply by changing status to another nonimmigrant
status and then changing back to F-1.
Service policy does allow an F-1 student to receive another period of 12
months of practical training if the student has a significant departure of 5
months or more outside the U.S., and has subsequently re-entered the U.S. as an
F-1 for a new academic program.
When an individual
has filed an N-400 application in another jurisdiction, e.g. a resident of
Dallas filing at the Texas Service Center who then moves to VSC jurisdiction
and properly notifies the Center to transfer the file to VSC, what happens to
that application? Does it go to the
back of the line? Does it get any
priority? How is it handled?
When an N400 applicant moves to a new
jurisdiction, the address is updated in CLAIMS 4 (C4) to reflect this
change. The C4 database is designed to
acknowledge changes in jurisdiction as a result of address changes. Therefore, once the case is update
electronically with a change of jurisdiction, it will be active under the new
jurisdiction and not the old.
Additionally, if a fingerprint appointment or interview needs to be
rescheduled as a result of this address change, then CLAIMS 4 should ensure the
required activities are rescheduled. If
there is some problem, we will ensure the case is rescheduled for a fingerprint
appt or interview.
Although the case may change jurisdiction to a
new Service Center (local office under a new Center), the file does not
physically move. Because C4 is
electronically updated to reflect the new jurisdiction, the files are not
relocated to the new Center. Rather,
the files will remain at the Service Center were the application was originally
filed. The case will be accessible for
electronic interview scheduling under the appropriate local office based on the
new address entered into CLAIMS 4. At
that time that office schedules for interview, the file will be sent directly
to the interviewing office instead of going from one Center to another and then
to the local office.
Committee Comment: VSC advises
that when the case is transferred, it is placed “electronically” in line for
scheduling in the new District based upon its original filing date. Accordingly, it does not lose its place in
line but would be subject to whatever is the normal backlog for the new
jurisdiction. e.g. A case is filed on January
2, 1999 in the Vermont Service Center based upon an address in New York
City. The individual notifies the
Service Center that he/she has moved to Miami.
The case will be electronically transferred to the Texas Service Center
as indicated above, while the file remains at the Vermont Service Center
pending clearances and scheduling. The
case will be scheduled in Miami when it is reached chronologically based upon
the January 2, 1999 filing date.
If an individual
must execute fingerprints overseas at an American Embassy Consulate or Military
Base (e.g. a 319B case) how are those fingerprints to be handled and how are
they entered into the system? Can you
outline the appropriate requirements, accompanying documents (if any), proper
addressee, processing after received by VSC center, VSC, etc.?
Other than the process for submitting an FD258,
cards from applicants overseas are handled in the same manner as other FD258
submissions. An applicant residing
abroad may submit an FD258 from overseas which should be submitted with the
N400 at the time of filing. If not, we
will request an FD258 from the applicant.
If the applicant responds to our request and submits a completed FD258,
it should be returned to the VSC with the I-797 notice which requested the
submission of the card.
Once a completed FD258 is received at VSC from an
applicant abroad, it goes through the process in the same manner as all other
We have been
requested by AILA’s National “Naturalization Committee” to gather, if at all possible,
accurate information on:
(e.g. cases being scheduled out of order, lack of notice to attorneys);
Legal issues, for
example, denials of particular types of cases;
Close outs/file management/computer
Any other issues of
interest effecting Naturalization practice.
Can you report on the state of the
Naturalization Unit in the context of these issues?
Although AILA's National "Naturalization
Committee" requested the following information, we feel each of the items
below are ones which are issues that affect INS or are handled by INS at a
national level. Therefore, we
respectfully request that these issues be submitted to INS Headquarters in
AILA Committee Comment: VSC pointed out that the N-400 process is
monitored closely and that there are weekly conference calls between the
Vermont Service Center and headquarters seeking to resolve issues. They are constantly in the process of
working out glitches in the system with regard to the scheduling of cases as
often the data in Washington as to how many cases are ready and that at the
Service Centers does not correspond.
Considerable resources are allocated to reviewing files to be sure that
these inconsistencies are resolved and all cases ready, are put in for
The Vermont Service Center
allocates and physically separates the files for each District Office under its
jurisdiction and works with each District on an ongoing basis to assure to the
extent possible, full scheduling of cases.
© 2000, American Immigration Lawyers Association