Implementation of Direct Mail for Employment-Based Adjustment of Status Applications

Subject: Implementation of Direct Mail for Employment-Based Adjustment of Status Applications

To: Regional Directors
District Directors
Service Center Directors
Officers in Charge

From: Office of Examinations

On October 30, 1996, the Service published a notice in the Federal Register (61 FR 56060) to extend the Direct Mail Program to adjustment of status applications filed by beneficiaries of employment-based petitions (Forms I-140, I- 360 for religious workers, and I-526). The same notice announced the restoration of the Texas Service Center to the processing of employment-based petitions (Form I-129, I-131, I-485, I-765, and I-829) within its jurisdiction. The changes provided in the October 30 notice took effect on November 29, 1996. The following implementation instructions are therefore effective immediately.

Implementation of Employment-Based Direct Mail Processing by the Service Centers

On November 29, 1996, the service centers commenced accepting employment-based applications in accordance with the October 30 Federal Register notice. Applications mailed directly to a service center are receipted in accordance with 8 CFR 103.2(a)(7) and a Form I-797 acknowledge provided to the applicant and to his/her representative of record. Information regarding the new filing procedures of employment-based adjustment of status applications is also included in the I-797 sent to impacted persons such as the petitioners of Forms I-140, I-526 and I-360.

The HQBEN Coordination Branch has developed a national SOP, entitled “Service Center Guidelines for Processing of Form I-485,” which establishes service center procedures for the processing of employment-based I-485s and their associated applications under the Direct Mail Program. The guidelines stress the importance of keeping adjustment applications filed by immediate family members together for adjudication.

The Direct Mail Program does not alter the documentation required to process an I-485 application. As provided in the Form I-485 instructions, a single set of properly executed Form FD-258 fingerprint card is sufficient to initiate the required security checks.

As discussed in the October 30 Federal Register notice, persons mailing an employment-based Form I-485 application to a service center need not attach a completed Form I-89 biometric data card. When the service center has approved an adjustment application which lacks a properly executed Form I-89 card, it will issue an I-797 action notice instructing the applicant to complete the Form I-89 at the local district office, which will immediately return the completed Form I-89 and a copy of the I-797 notice to the service center. HQBEN is in the process of redesigning Form I-485 to include the biometric data presently captured on the Form I-89 card, in order to eliminate the necessity of trips to the district offices solely for the purpose of capturing biometric data.

An updated consolidated listing of civil surgeons authorized to perform the medical examinations required for stateside immigrant processing has been furnished to HQBEN. District offices should promptly notify the HQBEN Coordination Branch and the Resident and Status Service Branch, Attention Civil Surgeon Coordinator, through channels, of any changes in the designated Civil Surgeons in their locality.

Interview determination procedures under the Direct Mail Program

On November 25, 1996, the INS published a final rule (at 61 FR 59825-27) adopting, without change, the existing 8 CFR 245.6, which allows each INS director to adjudicate an application for adjustment of status without an interview, when it is determined by the Service that an interview is unnecessary. The interview determination provision was instituted to enhance the ability of the INS to direct resources into the area of fraud detection and deterrence, while reducing waiting time and burdens on the public in instances where interviews are unnecessary.

The authority to make interview determinations under 8 CFR 245.6 is delegated to all INS directors responsible for the application of this provision within their respective jurisdictions. HQBEN will develop additional guidelines for implementing the interview determination provision in connection with the expansion of the Direct Mail Program. These additional guidelines will take into consideration local and regional concerns. Service centers receiving I- 485 applications under Direct Mail are required to file the monthly report referenced in the attached policy memorandum HQ 245-P, dated November 4, 1992, on the subject of interview determinations. All field offices should note that the HQBEN unit to which the monthly report is now sent is the Residence and Status Service Branch.

When adjudicating employment-based adjustment applications, service centers will follow existing guidelines to identify and adjudicate low-risk applications (such as dependent children and long-term spouses) and to refer those requiring an interview to the appropriate district offices for final adjudication. Among the I-485 applications requiring referral to the district office are section 245(i) cases that present higher risk (such as those filed by applicants who entered without inspection) or other complexities that should be resolved through interview. [Note that I-485 applications not processed under Direct Mail likewise require interview if they involve entry without inspection or other higher risk factors.] In addition, each service center will refer to the respective field office a random sample of at least 2 per cent of other I-485 receipts to be interviewed and adjudicated by the district offices for the purpose of quality assurance. In the event that the service centers finds it necessary to transfer the adjustment application to a district office, it will issue an I-797 notice of action to advise the applicant and to his/her attorney of record. If an I-485 transferred to a district office for interview results in a denial, that office is hereby instructed to forward a copy of the decision to the service center which referred it.

Transition Period Implementation of Employment-Based Direct Mail by the District Offices

During the 60-day transition period ending January 28, 1997, district offices may, at their option, forward newly received applications which are designated for the Direct Mail Program to the appropriate service centers for processing, provided that they meet the shipping criteria discussed below. District offices which decide to forward Direct Mail-designated applications received during the transition period to the appropriate service center must do so immediately. Any such cases transferred from a district office to a service center shall be accounted for on a daily basis, as described in the previous August 30, 1996, HQ 70/23-P policy memorandum. Where an application submitted by a district office fails to disclose the filing date in accordance with the Instructions for Shipping, the service center will return the package to the district office for completion of adjudication. On acceptance of a transferred case that meets the Instructions of Shipping criteria, the service center will send an I-797 acknowledgment for the information of the applicant and the applicant’s representative of record, if any. During the transition period, district offices may also transfer employment-based adjustment applications which were pending prior to November 29, 1996, to the service center, provided that they also meet the shipping criteria discussed below. Any employment- based adjustment applications pending at a district office after February 28, 1997, must be adjudicated to completion by that office.

Until January 28, 1997, district offices may choose to continue accepting and adjudicating employment-based applications for permanent residence, taking into account such factors as whether transfer of the case to the service enter would significantly delay EAD issuance, whether local workloads would be impacted by retention of the case, and other relevant considerations. District offices may retain jurisdiction over the adjudication of applications for employment authorization and advance parole accompanying such applications only if they have the capability to issue the documents applied for. An applicant who believes there is a reason for a local office to retain an employment-based adjustment case that will be filed during the transition period should contact that office prior to filing.

The October 30 Federal Register notice provides that any employment-based adjustment application submitted to an INS district office after January 28, 1997, must be returned to the applicant with instructions for the applicant to mail it to the appropriate service center. The attached Supplementary Instruction to Form I-485, Application to Register Permanent Residence or Adjust Status shall be used in this regard. Any person attempting to file an employment-based adjustment application in person should be furnished the same information, either in writing or orally.

Second Filings of Employment-Based I-485s Received under the Direct Mail Program

In order to avoid the inconsistent outcomes, fraud, and administrative waste that can attend adjudication by different offices of multiple applications filed by the same applicant, the attached supplemental I-485 filing instructions have been modified to require prospective Direct Mail applicants who have an employment-based I-485 application already pending at another INS office to either withdraw (terminate) the previous application or arrange to have it transferred to the appropriate service center prior to filing a new I-485 application.

If a service center receives an I-485 application for a case which it determines - either by a data system check or representations by the applicant - to be pending at another office, it will return the entire enclosure to the sender, together with a Form I-797 notice instructing him or her to either withdraw the previously filed I-485 or have it transferred to the service center. Service centers and district offices should maintain close communication through their designated points of contact regarding such cases.

Criteria for Shipping Direct Mail Applications from District Offices to Service Centers

District offices shall not forward an employment-based adjustment application to a service center unless it meets the following criteria:

• The applicant is the beneficiary of an approved employment-based petition (Form I-140, I-526, or I-360 [for a Special Immigrant Religious Worker]);
• An immigrant visa number is currently available or was available when the district office receipted the application for filing;
• The applicant has submitted all the initial evidence required by the Form I-485 and completed (when appropriate) Supplement A to Form I-485;
• The applicant has submitted the proper fee(s), which the district office has receipted and documented in the I-485 package sent to the service center;
• A properly executed FD-258 fingerprint card is attached to the application or, if the FD-258 had already been stripped for processing, the application has been held until completion of the required FBI clearance, in which case the sending office must annotate the application to reflect the dates on which the FBI clearance was initiated and completed, and attach any report sheets regarding “idents”. If the required clearance on a stripped card is not completed prior to February 28, 1997, the district office must complete the adjudication;
• The district office has determined that the case does not require an interview and that its transfer to the service center will facilitate the adjudication process;
• If the district office has an A-file, temporary A-file or work folder relating to the I-485, it will send it to the service center, with the I-485 materials affixed to the right (non-record) side of the file with a 2 prong acco fastener. If the A-file relating to an I-485 which is about to be forwarded to the service center is at another office, the district office forwarding the I-485 should not process a file transfer request at that time;
• The district office has included any derivative I-485 application submitted by an immediate family member of the principal applicant with the principal applicant’s shipment package, and so noted that information on every I-485 included in the family group;
• The district office has annotated the Form I-485 to show any pending application by the adjustment applicant for advance parole or employment authorization which the district office has chosen to include in the transfer;

Distribution of Employment-Based Direct Mail Forms and Information

Effective November 29, 1996, the new Direct Mail supplementary filing instructions referenced at the end of the attached October 30, 1996 Federal Register notice must be included in any Form I-129, I-131, I-140, I-485, I-526, I-765, or I-829 distributed to the public by the Form Centers or by INS field offices. Stocks of the new supplementary filing instructions may be obtained from the Forms Centers as needed, through established channels.

The HQBEN Customer Service Branch has prepared information packets for distribution to immigration provider organizations, special interest entities and AILA national local chapters. The initial information packet explains how the expanded Direct Mail process works and reproduces the modified filing instructions for forms impacted by the extension of the program to employment-based adjustment cases. The Customer Service Branch is also developing messages regarding employment-based Direct Mail for inclusion in the Ask Immigration and other telephone programs.

District offices having questions concerning this instruction should address then to the appropriate INS regional office. Service centers having questions concerning this instruction should address them to the Coordination Branch of HQBEN, attn: Sharen Nichols, Chief.

This memorandum has the concurrence of the Office of Field Operations and supersedes the interim instruction wire issued by that office on November 27, 1996.

Louis D. Crocetti, Jr.
Associate Commissioner

Attachments: Transcript of October 30, 1996, Federal Register notice.
Previous policy memo HQ 70-23-P dated August 30, 1996.
Policy memorandum HQ 245-P, dated November 4, 1992, with attached format for monthly report regarding I-485 interview determinations
Supplementary Instructions to Form I-485