California Service Center Announces Major Policy Changes
Posted Jun 10, 2000

At a meeting on May 23, 2000 between the California Service Center (CSC) of INS and representatives of AILA, the CSC announced the following policy changes:

Denial Policy :

The CSC has pledged to stop denying petitions outright that appear to have deficiencies and cannot be immediately approved. The new policy will be to follow a three-tiered approach to handling deficient cases: a) Applicants/Petitioners with cases that appear to have deficiencies which can be explained or overcome will receive a “request for additional evidence” (RFE). An RFE usually allows 12 weeks to respond with information or evidence to the INS; b) Applicants/Petitioners with cases in which the reason for a denial seems insurmountable, will be issued a “notice of intent to deny” (NID). A NID usually allows up-to 30 days to respond by the INS; c) Cases will still be summarily denied when they are clearly not approvable under the statute.

Expedites in “Age Out” Cases :

The CSC has announced that it will finally follow the other Service Centers and expedite cases where a dependent is about to age out (turn 21 years old). By way of background, in either an Employment Based or most types of Family Based green card cases (as well as lottery and asylum-based adjustments of status) the principal’s spouse and children are eligible to obtain their permanent resident status along with their parent or spouse. For a child to be eligible for this “derivative” procedure, a few criteria must be met. Under the statute, a “child” must be under 21 years of age, and unmarried. A child who turns 21 years of age while his/her parent is in the process of obtaining her/his green card no longer qualifies as a “child”, and is no longer eligible to derive the benefit of becoming a Permanent Resident through the parent’s case. This phenomenon is known as “aging out”.

In a case where an I-140 petition has been filed and a dependent has six months or less until his/her 21st birthday, the petitioner or the attorney may fax a request to expedite the case along with proof of the relationship of the dependent to the principal and proof of the dependent’s birthday to the INS. If the I-140 petition has not yet been filed, the petitioner should request an expedite at the time of filing it, if the dependent will age out within 8 months, and include proof of the relationship of the dependent to the principal and proof of the dependent’s birthday. The CSC recommends still filing a request to expedite by its usual fax procedures if there has been no response to the first expedite request by the time the dependent is 6 months away from the 21^st birthday.

I-485 Adjudications :

CSC is currently adjudicating I-485 applications with fingerprints that are still valid and giving priority to those cases in which the fingerprints will expire within 90 days.  INS considers fingerprints as having expired after fifteen (15) months. CSC has worked out a procedure with AILA for requesting decisions on cases in which the fingerprints are due to expire within 90 days. One result of this procedure is that many older cases continue to be stuck in the backlog, while more recently filed cases are being approved.

Effect of Corporate Changes on Green Card Cases :

CSC appears to have changed its policy allowing proof of successor-in-interest to be submitted at the I-485 stage of an employment-based case.  By way of background, if a company has been bought out, merged or had a significant change in ownership, it is generally considered a successor-in-interest to the originally existing company, which filed the original labor certification (LC). In order to continue processing the employees’ green card cases, the Successor is required to submit documentation that it has assumed the rights, duties, obligations and assets of the original employer and that it continues to operate the same type of business as before. Similarly, a company that changed its name or location (even within the same metropolitan statistical area) would need to meet these requirements and possibly file a new I-140 Immigrant Petition.

In cases where the LC has been approved and the I-140 has not yet been filed, the Form I-140 (company’s immigrant petition filed with the INS for the foreign worker) should be submitted with the above documentation, in the name of the successor company. However, if the corporate change takes place when the I-140 is already pending with INS, or the I-140 is already approved and the beneficiary has filed the I-485 (application to adjust status), does the company have to start the process over from ground zero, filing a new I-140 petition?

In a prior MURTHYBULLETIN we reported that the head of the Residence Product Division of the CSC had agreed that if an I-140 is pending at the time that the company changes, no action would be required until the completion of the I-140 stage. Instead, evidence regarding the Successor Company should be submitted at the time of filing the I-485 application. In addition, the CSC said that it would accept such evidence in connection with an already pending I-485, and would continue processing the I-485 application as usual, without requiring the I-140 petition to be refiled.

Adding to the uncertainty and confusion surrounding successorship issues, the CSC has now indicated that persons with pending I-485 applications can try submitting evidence of change of corporate ownership, and the CSC will exercise their discretion as to whether or not to require a new I-140 Petition. The CSC now reserves the right to reject the additional evidence of the merger and require a new I-140 petition. A high-level source at INS Headquarters has informed The Law Office of Sheela Murthy, P.C. that this issue, as with others in which there is inconsistency among the Service Centers, may ultimately have to be resolved by Headquarters policy.