INS Policy on Adjustment of Status Interviews
Posted Sep 20, 2002
August 14, 2002, the INS issued a memorandum regarding the interview requirement for Adjustment of Status (I-485) Applications. The Memorandum sets forth the categories of I-485s for which the INS may waive the requirement of an in-person interview. This new Memorandum supersedes the previous memoranda on this topic.
INS regulations state that all applicants for Adjustment of Status must be interviewed but, in some instances, on a case-by-case basis, the interview can be waived. The interview must be conducted for all Adjustment of Status cases filed under INA section 245 (which includes all family- and employment-based cases) and 209 (Asylum / Refugee), except for those in the following categories. If a case falls within one of the following categories, the Service Center Director may determine whether to waive the interview requirement. However, even if a case fits within one of the following categories, it may be referred for an interview if it appears to be necessary. The reasons for a referral for interview include, but are not limited to, the presence of complex issues, criminal history of the applicant, indications of fraud, and any other such reason.
Employment-Based Applications
I-140 Cases
The interview may be waived for I-485 applications based upon Form I-140 (Petition for Immigrant Worker), if it is accompanied by original or certified copies of supporting documents. (Note that most law firms, including The Law Office of Sheela Murthy, generally recommend not sending originals, so certified copies are preferred.) The interview may also be waived for the derivative spouse or child of the principal applicant in this situation.
However, in order to fit within this policy, the I-140 petition must have been filed by the employer for which the I-485 principal applicant is lawfully employed as a nonimmigrant. The Memo notes that, in AC21 cases, the INS may consider whether the interview is needed on a case-by-case basis, even if the applicant is not working for the sponsoring employer, as allowed under the "portability" provisions. Therefore, use of the AC21 provisions will not necessarily require an interview in each and every instance.
I-526 and I-360 Cases
The interview may also be waived for I-485s filed upon approved Form I-526 (Immigrant Petition for Alien Entrepreneur) and Form I-360 (Petition for Religious Worker), if it is accompanied by original or certified copies of supporting documents.
Family-Based Cases
The interview may be waived for I-485s based upon Form I-130 (Petition for Immigrant Relative) for unmarried children of U.S. citizens and parents of U.S. Citizens. It may also be waived for spouses of U.S. citizens, provided that they are applying to adjust status from a K-1 (fiancé/e) status, within 90 days of entry. This policy is also extended to any K-2 children of the K-1 fiancé/e. Those spouses seeking to adjust status from any other immigration status will be interviewed. The INS can also waive interviews based upon I-130 petitions for unmarried children of permanent residents, if the children are younger than 14 years of age. Again, in each case the proper supporting documents must be provided to the INS with the submission, or upon request, in order for the interview to be waived.
Asylee / Refugee Applications
Most of these adjustment applications will be adjudicated without interview. (Note that the cases would have already received a separate, rigorous interview at INS in connection with the asylum application itself.) Those cases with "higher risk" or complex issues, criminal charges and indications of fraud will be referred for interview. Cases from countries where there are indications of changed country conditions (i.e. more favorable country conditions than existed when the asylum status was granted) will also be referred for interview.
Additional Categories
The INS may also waive interviews in limited, additional situations. These include cases where the applicant has been previously interviewed on the same application; cases where there is sufficient evidence to deny the case without an interview; and cases based on Form I-360, filed as a battered spouse or child, where the INS does not have any information that casts doubt upon the approval of the I-360.
Case-by-Case Standard
The Memo states that the decision regarding whether to interview an applicant must be made on a case-by-case basis. Those cases that raise concerns of fraud or misrepresentation and without sufficient evidence to require a denial must be set for interview, even if they fall within one of the listed categories.© The Law Office of Sheela Murthy, P.C.
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