TSC on Various Issues from December 2000 Meeting
Posted Feb 16, 2001
From time to time in the MurthyBulletin, we report on issues of interest to our clients that are discussed in meetings between representatives of the American Immigration Lawyers Association (AILA) and INS officials. These points help you, as the company processing immigration-related petitions or the individual undergoing the U.S. immigration law process, to understand the gray areas that exist in immigration law and the constantly evolving nature of issues and processes.
On December 11, 2000, attorney representatives from AILA met with officials at the Texas Service Center (TSC) of INS. Official minutes of the meeting were released on January 29, 2001. We describe below some of the highlights of the discussion.
H1B and L1 Processing Times
The adjudicators assigned to this type of case were temporarily diverted to work on other types of cases, and also to conduct the required audit of cases at TSC. (The audit was required by INS Headquarters, and affected all the Service Centers and local District Offices at INS.) TSC, and probably the other Service Centers as well, also received a large number of cases to beat the mid-December "training fee" increase.
TSC has been working hard to clear the backlog on H1B and L1 cases. Indeed, in the almost two months since the time the AILA liaison meeting was held, we at The Law Office of Sheela Murthy have seen significant improvement in processing times.
I-824 for Consulate Notification
As many MurthyBulletin readers are aware, if an immigrant petition is approved indicating that the beneficiary will adjust status but the beneficiary instead chooses to process through a consulate, then it is necessary to file Form I-824 for cable notification to the consulate. We have reported in previous issues of the MurthyBulletin on an expedited procedure, for employment-based cases only, whereby consulates are now supposed to accept proof of filing the I-824 along with certain other documents, and can open the case without waiting for approval of the I-824. However, not all consulates are doing this. And for family-based cases, this new procedure is not an option.
There are also other special circumstances where it is necessary to wait until the I-824 is approved and the consulate notified before the case can be opened and the visa interview arranged at the consulate. For example, if a person adjusts status in the U.S. and there are family members abroad who will "follow to join," then notice of the adjustment approval needs to be sent to the consulate in order for the family members to be processed.
At the liaison meeting with TSC, AILA attorneys indicated that sometimes the consulates say they have never received the notification, even after TSC has approved the I-824. Fortunately, TSC is now faxing approval notices directly to the consulate. This procedure will hopefully solve the problem and assist in obtaining earlier interview dates for the immigrant visas for family members who are waiting abroad for several months or years.
I-485 Processing Time Reports
Attorneys observed that the various Service Centers have different methods for estimating processing times that they release to AILA and the public, and that we share with you at www.murthy.com. For example, some Centers indicate the receipt date of the oldest case currently being processed. They asked why TSC does not use this method, and wondered how TSC decides what date to put on the processing time report.
TSC's answer was that the date indicated on the processing time report for I-485s reflects an average receipt date of those cases being worked on currently. Since TSC is complying with INS Headquarters' instructions on reducing backlogs, the Center has a team devoted to completing older cases. Therefore, TSC is currently working on many cases that were received prior to the date indicated on the report, as well as many received more recently.
Employment-Based Adjustment for Applicant with I-751 Pending
This is a somewhat unusual issue that may have to be taken up with headquarters rather than being resolved at the Service Center level. We include it here in the MurthyBulletin because it brings together various aspects of the immigration law that are usually not combined in a single case, so it is difficult to determine how the various requirements interact.
The situation was of a person who originally obtained conditional, permanent residence based upon marriage to a U.S. citizen. As many readers are aware, if the couple is married less than two years at the time that the Green Card is approved for the foreign spouse, then s/he will obtain a two-year period of conditional residence. In order to maintain the Green Card status past that point, it is absolutely necessary to file a Petition to Remove Conditions on Residence (Form I-751). If the couple is still together, they file the I-751 jointly. However, if there has been a divorce or if there is spousal abuse or certain hardship issues, the foreign spouse can file the I-751 on his or her own and show that the marriage was entered into in good faith, but that there was a divorce, abuse, or other issue.
If a person fails to file the I-751 or the I-751 is denied, the conditional residence is terminated. Under the law, a person whose conditional residency has been terminated may possibly be the beneficiary of another family-based or employment-based petition, though the burden of proof may be high if it is another marriage-based case. But the case raised at the TSC is a person whose I-751 is still pending, who had an I-140 (employment-based petition) approved. The question was, can he go ahead and file an I-485 Application to Adjust Status based on the I-140, even though the I-751 is still pending, or does he have to wait for the decision on the I-751 first? Given that the I-751, particularly when filed by the foreign spouse alone, can take a year or more, this timing issue is important. However, keep in mind that a person with an I-751 pending is still legally a permanent resident, so he can remain and work in the U.S. in the meantime.
Anyhow, TSC is engaged in continuing discussion with AILA liaison attorneys about this issue, to see how it should be resolved.
H2B Processing Times
TSC officials were asked whether H2Bs are considered high priority because they are for short-term employment. The response was yes. H2B petitions are decided within only 10 to 15 days from the time they are filed.
In case readers of the MurthyBulletin are unfamiliar with the H2B category, H2Bs are for temporary positions at a variety of skill levels. The need for the worker must be temporary, for example seasonal or peak-load employment, or a one-time need for a special project. The position must also be temporary in nature, so an H2B worker cannot fill a position that has previously been staffed by a permanent, non-temporary employee. As a prerequisite to filing the H2B petition, a temporary version of the Labor Certification, generally used only in Green Card cases, must be filed with and approved by the U.S. Department of Labor (DOL). Therefore, the job is advertised to show that the necessary skills are unavailable locally. The H2B category will be the subject of a future MurthyBulletin article in our Overview series. © The Law Office of Sheela Murthy, P.C.
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