NSC Teleconference on I-485s : April 24, 2002
Posted May 24, 2002

Officials from the Nebraska Service Center (NSC) spoke with the American Immigration Lawyers Association (AILA) liaison members on April 24, 2002 regarding current procedures and policies at the NSC. The highlights of that discussion, all of which relate to the final stage in the green card process, the I-485 (Application for Adjustment of Status), are summarized below for the benefit of our MurthyBulletin and MurthyDotCom readers who have cases pending with the NSC.

Fingerprint Notices

The NSC is continuing its efforts to resolve the fingerprinting scheduling problems in connection with I-485 (Application for Adjustment of Status) cases. There is a backlog in St. Louis and other areas due to a lack of available slots at the Application Support Centers (ASCs) that perform the fingerprinting. INS Headquarters is initiating a major push in an effort to clear fingerprint backlogs in St. Louis and other areas that are backlogged. The NSC is continuing to scan its database to identify those cases with fingerprint clearances that may be expiring. (Fingerprint clearances expire after 15 months.)

I-140s Sent to NVC or Consulate

In some instances, individuals select consular processing at the I-140 (Immigrant Petition for Alien Worker) stage, but change their minds and proceed with Adjustment of Status. In such cases, the I-140 underlying the I-485 may have already been transferred to the National Visa Center or the selected consulate abroad. When this occurs NSC cannot make a decision on the I-485 but it requests the I-140 file returned from the National Visa Center or the consulate and will have to hold the I-485 in abeyance until the I-140 package is back at NSC.

Transfers to Local Offices

The NSC confirmed that it transfers some employment-based cases to the local offices for interview when there is a derivative spouse I-485 application involving a relatively recent marriage. This transfer to the local office will slow the adjudication of the case considerably.

I-485 Portability Under AC21

The NSC has been issuing Requests for Evidence regarding salary levels in I-485 cases with an applicant attempting to utilize the portability provisions of AC21. These provisions apply when the I-485 has been pending for 180 days or longer and the applicant seeks approval of the I-485 via employment other than that described in the labor certification. This employment must be in "the same or similar classification" as the labor certification employment.

AC21 does not stipulate that the new position offer the same salary as the position in the labor certification. Therefore, the NSC was asked why they inquired about salary levels. The NSC said that the salary information is part of its determining whether the position is the same or similar to the labor certification position. They replied that salary is "sometimes relevant, but is not a dispositive factor."

We certainly trust that the INS would only be looking for extreme deviations from the labor certification salary as indicators that the new position clearly was not within the same or similar category. This is particularly relevant since the INS Guidance Memorandum of June 19, 2001 indicates that the salary is only an issue in satisfying the poverty level wage to avoid the person's becoming a public charge of the U.S.

Matching with Derivatives

The NSC confirmed that it tries to match the I-485 cases of derivative family members with the principal applicant in order to adjudicate them together.

Faster Service?

The NSC has hired two or three more adjudicators for I-485s and expects to add four to five more officers shortly. This increase in its I-485 staff is expected to allow processing of a greater number of cases.