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VisaScreen Not Required Prior to Filing I-485
Posted
Dec 05, 2003
At a recent meeting between American Immigration Lawyers Association (AILA)
and U.S. Citizenship and Immigration Services (USCIS) representatives, a
question was raised regarding when the health care worker certificate
(commonly called the “VisaScreen”) should be filed. AILA asked whether the
certificate must be presented at the time of filing the I-485 or adjustment
application, or at some time prior to adjustment. The USCIS affirmed its
prior position that the VisaScreen does not have to be submitted at the time
of filing the I-485 application. This confirmation of previously existing
policy will help many health care workers to stay and work legally in the
U.S., even before obtaining the VisaScreen.
Regular readers of the MurthyBulletin and MurthyDotCom will
recall that we addressed this question in our October 10, 2003 article,
USCIS Memo on Certification of
Health Care Workers, regarding a September 22, 2003 Memo issued by
the Associate Director of Operations for the USCIS, William R. Yates. The
Memo stated that persons seeking to adjust status to permanent residence
through employment in one of the affected health care occupations must have
the VisaScreen at the time of filing for adjustment of status. The USCIS now
confirms that its long-standing policy of allowing the I-485 to be filed
without the VisaScreen has not changed:
“Recent guidance issued by CIS regarding healthcare workers (Final
Regulation on Certification of Foreign Health Care Workers, September 22,
2003 issued by Associate Director for Operations William R. Yates)
incorrectly assumed that the certificate was an initial requirement when in
fact the Service Centers have allowed subsequent filing. The memo was not
intended to change this policy and the existing practice of allowing
post-filing submission of the 212(a)(5)(c) certificate remains in effect.”
The policy of allowing a person to file the I-485 before obtaining the
VisaScreen will give an adjustment applicant the right to obtain an
Employment Authorization Document or EAD to work legally in the U.S. In
addition to the EAD, an adjustment applicant who has maintained status in
the U.S. or who has not been unlawfully present for over 180 days, will be
able to obtain Advance Parole permitting the person to travel abroad and
reenter the United States.
Notwithstanding the policy permitting the filing of an I-485 prior to
obtaining the VisaScreen, the health care worker certificate must still be
submitted to the USCIS before it will approve the I-485 application. We
continue to urge I-485 applicants to apply for the VisaScreen as soon as
possible as it may take several months or longer to obtain it. This
affirmation of policy should be welcome news for health care professionals
who are subject to the VisaScreen requirement.
©
The
Law Office of Sheela Murthy, P.C.
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