ISD Teleconference : September 19, 2002
Posted Oct 11, 2002

The INS Immigration Services Division (ISD) teleconference with AILA on September 19, 2002 brought to light some important advisements regarding concurrent I-140/I-485 filings, as well as a new, and rather unusual, interpretation of AC21. The MurthyBulletin and MurthyDotCom regularly report highlights of these teleconferences, updating our readers on matters of INS policy and procedure.

AC21 : Ability of Substituted Employer to Pay Wages

AILA members advised ISD that at least one INS Service Center is making inquiries regarding the ability of the new employer to pay the wage stated on the labor certification in cases where the foreign national is attempting to gain approval of an Application for Adjustment of Status (I-485) based upon the American Competitiveness in the Twenty-First Century Act (AC21). AC21 allows for the approval of I-485s based upon employment other than that stated on the underlying labor certification, if the I-485 has been filed and remains unadjudicated for at least 180 days. In order to qualify, the position must be the same as, or similar to, the position described in the application for labor certification. AILA argued that inquiries about the new employer’s ability to pay are improper and irrelevant to the AC21 considerations.

ISD responded that the Office of Programs at INS had advised that the new employer must pay the wage on the Labor Certification. Therefore, the new employer’s ability to pay would be a relevant issue.

It appears that AC21 merely states that the new job must be the same as, or similar to, the position described on the labor certification. There is no mention of salary level. In fact, INS had addressed salary in a written memorandum issued June 19, 2001. Since INS has yet to issue regulations on the AC21 law, this Memo is the only written guidance available to date on the meaning of AC21. The Memo specifically states that the new employer must provide salary information, in order for INS to determine whether the new job is same or similar and whether the person would make a sufficient amount of money to meet the “public charge” provisions of the law. With respect to the "same or similar" determination, if the salary offered in the new job is vastly different from the salary on the labor certification for no apparent reason, it may raise a question regarding whether the new job is really the "same or similar" job. If the salary falls below a level at which an individual can be self-sufficient, and may need governmental funds to subsist, the "public charge" provisions come into play. There is a vast difference between the public charge requirements and the requirement to meet the salary on the Labor Certification. This issue requires further discussion with INS Headquarters in order to be consistent with their original position as outlined in the June 19, 2001 INS Interim Guidance Memo and to be consistent with the wording of the law.

INS repeatedly has stated the June 19, 2001 Memo's interpretation of the salary requirement. There was a statement by the Nebraska Service Center (NSC), that they reviewed salary levels to determine whether the new position is the same or similar. According to NSC officials, salary "is sometimes relevant, but is not a dispositive factor." This comment was mentioned in our May 24, 2002 article, NSC Teleconference on I-485s: April 24, 2002, available on MurthyDotCom.

The ISD statement in the 09.19.2002 teleconference with AILA is the first official announcement of any divergence from the prior interpretation. Clarification is needed as to which version of the salary guidance will be reflected in the regulations. Having the force of law, the regulations set forth the rules, requirements, and procedures that must be followed thereafter.

Medical Forms Shortage

Consistent with the recent experience of The Law Office of Sheela Murthy, the ISD acknowledged that there is a shortage of the medical forms required with the I-485. The INS provides hard copies of forms, such as the medical form, free of charge in small amounts. Usually, they will not provide more than five forms to any one person. Those in need of larger quantities of medical forms, such as law firms or authorized doctors, must purchase them in bulk from the U.S. Government Printing Office (GPO). While, based on our experience with our local INS offices, it is still possible to obtain a few forms at a time directly from INS; it has not been possible to obtain the large quantities needed from the GPO. Unfortunately, the GPO has indicated to AILA members that they do not have any forms and will not be printing more of the current form. The reason for this is that the forms are being revised.

The INS Headquarters is working on the form revision for fiscal year 2003. ISD promised to check on the form's availability, because INS Headquarters was under the impression that the forms were available. They will also determine and inform AILA whether adjustment applicants may use copies of the medical forms if the originals are not available.

Concurrent Filings : I-140 Review Before EAD or Advance Parole Issuance

There has been a reported increase in the number of frivolous I-140 filings following the commencement of concurrent I-140/I-485 filings. Presumably, this is to gain the benefits, including the Employment Authorization Document (EAD) and Advance Parole (AP), which are available to persons filing I-485s. The example provided by INS is the filing of cases for which the person is statutorily not eligible, such as a high school student attempting to file under the “extraordinary ability” category. Although the INS example makes sense in a majority of the cases, it should not be presumed there are no extremely exceptional individuals who could qualify since the law does not mandate any minimum education or work experience.

In order to address this problem the INS will now be reviewing I-140 petitions, at least briefly, before processing the I-765 (Application for Employment Authorization Document or EAD) and/or I-131 (Application for Travel Document). If the I-140 does not indicate at least a minimum level of evidence of eligibility, the INS will issue a Request for Evidence (RFE) for such initial documentation. In this instance, adjudications of the remaining filings, including the I-485, I-765, and I-131, will be put on hold. According to the INS, the 90-day clock for I-765s will stop counting when the RFE is issued and will resume upon the receipt of the response.