VSC Update : September 2005
Posted Oct 28, 2005
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Details of a September 22, 2005 meeting between some members of the American Immigration Lawyers Association (AILA) and senior officials at the Vermont Service Center (VSC) has recently been made available. Key points are included here for our MurthyDotCom and MurthyBulletin readers.
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H1B Recapture
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The VSC has indicated that the recapture of H1B time will be permitted by counting days that the H1B beneficiary was outside the United States. While they will not initiate revisiting prior cases in which recaptured time requests were denied, they will consider timely-filed motions to reopen or reconsider and appeals on the recapturing issue. This appears to be an important change in recapture policy. The USCIS has had a long standing recapture-of-time policy, permitting only the recapture of time that was "meaningfully interruptive" of the H1B stay in the U.S. The more liberal policy appears to be tied to recent court decisions addressing this matter and previously reported in MurthyBulletin articles, available on MurthyDotCom. [See our September 9, 2005 article, AAO Allows Recapturing H1B Time Abroad.]
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Digital Photographs
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For I-765 and I-131 applications that require photographs, the VSC confirmed that they will accept digital photographs. These must conform to the standards on the U.S. Department of State (DOS) website.
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Case Returned by the Consulate
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At present, if a consulate returns a case to the VSC, requesting revocation of an approved petition, it is difficult to know whether the VSC has received the case or if there is any progress on the case. VSC indicated that they are working on updating their system so that returned case information will appear in the online case status system.
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When a consulate returns a case to the VSC, the VSC will generally issue a letter either with an automatic revocation, an intent to revoke, or an affirmation of the petition approval. Employment-based cases have historically been processed more quickly than family-based cases, and there is a backlog of returned family-based cases. The VSC is working to eliminate this backlog.
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Improper Green Card Requires Filing the I-90
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An individual entering the United States for the first time as a lawful permanent resident (LPR) is sometimes incorrectly given a conditional permanent resident (CPR) green card. CPR status generally is valid only for two years, while LPR status is valid indefinitely. When one receives a green card, s/he should review it to ensure that all information is correct, including that the card is for an LPR rather than a CPR. Conditional cards are clearly labeled as such and have a two-year expiration date. If the card is incorrect, the person should file a Form I-90 and mark box "D – My prior card was incorrect" to obtain a corrected card.
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Note that non-conditional cards have an expiration date of ten years. This simply means that the card must be reissued with a new photograph at the end of the ten years. Unlike the conditional cards, the actual permanent resident status does not expire at the end of the ten years, only the document establishing the status expires and needs to be renewed.
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Late Issuance of Green Cards
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If the VSC has approved an individual's LPR status, and the green card is not issued in 60 days, VSC instructs that one should contact the National Customer Service Center (NCSC) by calling the toll free number, 1.800.375.5283.
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"RFEs" to DOL do not Require Employer or Attorney Response
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The VSC occasionally sends a "Request for Evidence" (RFE) to the U.S. Department of Labor (DOL) to obtain a copy of an approved labor certification. This has been appearing online in the case status system as issuance of an RFE, but the RFE of course is never sent to the attorney since the DOL must directly respond to VSC. The VSC has indicated that they will start sending a courtesy copy of the RFE to the attorney so that all parties will know that a response from the petitioner, beneficiary, or applicant is not required for this type of RFE.
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I-130 Petitions Processed if PD Approaching
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The I-130 petitions generally are processed by the USCIS once the priority dates become current. The VSC has indicated, however, that they are trying to process all I-130 petitions that are within a year of the priority dates listed in the DOS Visa Bulletin. [Note that the most recent DOS Visa Bulletin can always be found on MurthyDotCom.]
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Generous with I-485 Filings Prior to Retrogression
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The VSC has confirmed that, for an I-485 application that was filed without the completed medical/s during the rush to beat retrogression, they will issue an RFE rather than deny the case outright. We at The Law Office of Sheela Murthy appreciate this confirmation, as there are many who did not have time to obtain an appointment with an authorized civil surgeon and/or to gain the required test results before their cases had to be filed.