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VSC Liaison Minutes 1/27/2000

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

H-1B Issues

1. 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.

2. 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.

3. 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.

4. 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 confusion.

In 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 counting purposes.”

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.

5. 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 eligibility.

6. 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.

The 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

1. 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 requested.

When 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.

The 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 214.2(h)(9)(ii)(B) state:

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.

AILA 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.

2. 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 accrued?

The 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.

3. Several members 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?

Regarding 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 extension.

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.

To 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.

I-485 Issues

1. 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 particular group.

AILA 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.

2. 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?

We are planning to give I-485 training later this month and expect to start adjudicating by late January or early February.

AILA Committee Comment: VSC could not make any projections as to movement of the backlog once adjudication of I-485 applications begins again.

3. 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).

We are still awaiting guidance from Headquarters on this issue.

4. 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.

Sole Jurisdiction

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

1. 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?

The 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.

2. 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.

VSC will 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 telephonically.

3. 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, is promulgated.

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.

Current regulations 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.

N-400 Issues

1. 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.

AILA 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.

2. 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 FD258s.

3. We have been requested by AILA’s National “Naturalization Committee” to gather, if at all possible, accurate information on:

a. Processing times;

b. Procedural problems (e.g. cases being scheduled out of order, lack of notice to attorneys);

c. Interviewing/testing issues;

d. Legal issues, for example, denials of particular types of cases;

e. Close outs/file management/computer issues; and

f. 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 Washington DC

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 scheduling.

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