CSC Liaison Issues for February 2001
Posted Mar 23, 2001

From time to time in the MurthyBulletin, we report on meetings and teleconferences between INS officials and attorney representatives of the American Immigration Lawyers Association (AILA). We present below some highlights of the February 13, 2001 quarterly meeting of AILA representatives with the INS California Service Center (CSC).

Frontlogs and Backlogs

A "frontlog" is a delay in entering a new case into the computer system at INS. In contrast, the more common term "backlog" refers to a delay in starting work on a case after it has been logged into the INS computer system.

At present it is taking up to three weeks for case data to be initially entered. CSC officials stated that funds have been made available to enable mailroom and data entry workers to put in overtime and reduce the frontlog.

INS projects that delays are likely both with frontlogs and with backlogs at all INS Service Centers as the April 30, 2001 deadline approaches for filing of petitions to qualify for 245(i). In employment-based cases the primary burden with respect to 245(i) cases will be shouldered by state labor offices, but family-based petitions in the four preference categories go to the INS Service Centers. At the meeting, CSC noted that they expect a large number of petitions to be filed on or shortly before April 30, 2001, and they are preparing to handle the additional caseload.

INS Corrects Mistaken Denials for Failure to Respond in a Timely Manner to RFEs

As readers of the MurthyBulletin may be aware, when INS requires further information on a case, they issue a Request for Evidence (RFE) and give the petitioner or applicant a 12-week deadline to respond. If the response is not received in time, then the case can be denied due to the failure to a timely response to the RFE.

AILA member attorneys have seen some instances when denials have been issued even though the response was filed within the allotted time frame. AILA requested CSC to set up a system to correct errors promptly in the above type of situation, in order to avoid additional delays and expenses. As some of you may be aware, the standard procedure to reverse a denial is to file a Motion to Reopen or a Motion to Reconsider, depending upon the nature of the issue leading to denial, along with a $110 motion fee.

CSC has experienced problems in having responses delivered and matched to the file. CSC is taking steps to correct the problem, and advises AILA attorneys to send letters or faxes to the particular division at the CSC that handled the case, in order to request that the incorrect denial be corrected.

Overly Restrictive Standard Language in EB1 I-140 RFEs

Some of the items requested in RFEs on I-140 cases have exceeded the legal requirements and standards for the type of case. In particular, AILA cited some language used by CSC in RFEs for EB1 Extraordinary Ability (EA) cases. While the standard to qualify for the EA is very high, some of the language in RFEs has gone beyond what is legally required in such cases.

For example, many RFEs for EA cases have requested advisory opinions from government organizations or major academic or business organizations verifying that the candidate is at the very top of the field of endeavor. Of course, all EA cases require reference letters from experts in the field to demonstrate that the candidate is nationally or internationally acclaimed for her/his abilities and achievements. But the RFE language described above requests an evaluation by a person speaking on behalf of a major organization. This is not mandatory for an EA approval under the statute or the regulations, though it may be helpful in many cases.

CSC has agreed to stop requesting this type of opinion on a routine basis, but reserves the right to do so in selected cases as it deems appropriate.

Another problematic EA RFE item was statistical evidence of high salary. Persons familiar with EA cases are aware that high salary in comparison with others in the field is one of the possible criteria that can demonstrate a person's level of renown and recognition. However, it is not required in every case, since to qualify for EA a person must satisfy at least three out of a list of ten criteria in the regulations.

CSC indicated that proof of high salary could validly be requested in cases where the salary level is being used as evidence of a person's recognition in the field.

The most burdensome type of EA RFE item cited is one that may actually be impossible to comply with. This RFE language asks for five to ten names of people at the very top of the applicable field of expertise, and a description of the achievements, current positions, and approximate salaries of each. No suggestions are included as to how to obtain confidential salary data.

CSC agreed on November 1, 2000 to stop using this language. If nonetheless it shows up on any RFE issued after that date, the RFE should be faxed to the appropriate division. A particular fax number was given for that purpose, so AILA attorneys can check the minutes of the liaison meeting for that number.

Delays in Forwarding Cases to the NVC

CSC was asked how long it should take for an approved I-130 or I-140 to be forwarded to the U.S. Department of State processing facility known as the National Visa Center (NVC). CSC acknowledged delays in shipping cases to NVC after they have been approved at CSC. CSC expects to reduce the backlog so cases can be forwarded promptly, within a few days after approval.

Fingerprint Appointments for I-485s

Sometimes when a family files their I-485s together as a group, some family members receive fingerprint notices while others do not. CSC suggests sending a fax to Division IV to request fingerprinting appointments in this situation. Please note that, according to CSC, the fingerprinting centers, known as Application Support Centers or ASCs, cannot fingerprint a person without a notice. Currently, fingerprint appointment notices are being issued within 120 days of receiving the I-485. [Editor's Note: this is the current time frame, but of course there may be cases which were being processed at a time when a different time frame was used.]

Another problem is multiple fingerprint notices for the same person; CSC is looking into resolving this and any other scheduling glitches in the system.

Older I-485 Cases Pending at CSC

While there has been marked improvement in processing times at CSC for relatively new I-485 cases, with many cases being approved within 6 months, there are many older cases still pending more than 18 months after filing with CSC. This situation has led to a question which has become familiar to many immigration law attorneys: "Why is my case still sitting there while my colleague / my friend / a person in an internet chat room already got an approval even though his/her case was filed after mine?"

Of course there are a variety of reasons why a particular case may be delayed. CSC cited as examples, awaiting a file from another location, awaiting a response to an RFE, awaiting FBI fingerprint results, etc. However, CSC offered no overall explanation as to why cases are being processed out of order.