VSC : August 27, 2002 Update
Posted Sep 20, 2002
As regular MurthyBulletin and MurthyDotCom readers are aware, the American Immigration Lawyers Association (AILA) has liaison meetings with the INS and other government officials regarding various issues. Vermont Service Center (VSC) responded to questions sent by AILA in August 2002. Highlights follow.
Processing Delays
INS acknowledged that most of the recent increases in processing times have been attributable to the security "name checks," which utilize the IBIS database. Prior to the institution of the IBIS check requirement, the Service Centers had significantly reduced their case-processing backlogs.
In order to avoid further delays and to try to bring processing up to date, INS Headquarters is implementing software improvements. These enhancements should be available in October 2002 but will undergo testing before they can be fully implemented. VSC is also hiring more examiners and continues to have openings for about 140 new employees.
A bright spot in the area of processing time is I-539 applications for extensions and changes of nonimmigrant status in the non-working categories. Service Centers are now required to process those cases in a much shorter timeframe, the goal being 30 days. The Law Office of Sheela Murthy can report that VSC is meeting that goal in most cases. The new processing goal is apparently a result of a revision in the regulations pertaining to conversion from B (visitor) to F (student) status. Due to a regulatory modification that occurred in April 2002, persons making this B to F change can no longer attend school while the application is pending. The application must be approved before the individual is allowed to attend school. Processing times have been reduced to avoid lengthy delays in these situations.
While this faster processing is good for some, VSC has indicated that the new processing time goal for I-539s has resulted in additional delays for other case types. The reason for this is that VSC had to shift personnel from other matters to I-539 adjudication in order to meet the goal. The situation at the other Service Centers is likely to be similar.
L1B "Specialized Knowledge" Cases
When questioned about an apparent increase in the number and complexity of INS queries in L1B cases, INS explained that there are many new adjudicators and they often need more detailed information in order to adequately analyze these cases. There are two types of L-1 intra-company transferees. The first, L1A, is for executive and managerial positions. The second type, L1B, is for positions requiring specialized company knowledge. The required, specialized knowledge refers to knowledge of the particular company's products, processes, client base and/or way of doing business.
Accordingly, VSC stresses that the examiners must have explanations in clear language that is understandable to a person outside the industry. The examiners need information clarifying what the company actually does, what products and services it provides, and any special aspects of its business practices. It is then necessary to describe the beneficiary's prior experience, education and training, and indicate how his or her background is needed for the U.S. position offered. It is necessary to show that the person has the specialized knowledge and also to demonstrate that the U.S. position requires such knowledge. The Requests for Evidence are aimed at obtaining and clarifying this information.
Telephone Inquiry Line
INS plans to make a toll free (1-800) telephone number available by January 1, 2003. This number will handle phone inquiries to all Service Centers on a centralized basis. Once this system is operational, all phone inquiries will have to go through the toll free line, rather than directly to the individual Service Centers.
Processing Time Charts on WebSite
INS is planning to post processing time charts for all Service Centers on the agency's website, using a uniform format. Currently, each Center uses a different format for processing time information. This is quite confusing. It may take some time before a consistent format can be agreed upon, as required before the information is made available on the INS WebSite. However, MurthyDotCom continues to provide this information to our readers. Updated as soon as the Service Centers make the information available to AILA, links to the processing times charts are published in each edition of the MurthyBulletin and are available from the black bar on the MurthyDotCom index page, as well other top-level pages.
H1B Job Terminations
When one is no longer working for the company that obtained H1B approval to hire the person, that company is required to advise INS of the termination of employment. It has been standard procedure for INS then to send an acknowledgment indicating that the approval of the petition has, accordingly, been revoked.
AILA attorneys asked whether INS could simply acknowledge the termination notice, rather than revoke the petition. The reason for this consideration being, if the petition is not revoked, it is legal for the employee to be rehired by the same employer later based on the prior, approved petition. There may also be other possibilities; for example, if the employee goes abroad and later returns to resume work for the employer prior to the expiration date of the petition. Therefore, while employers need to notify INS of the termination, they do not necessarily also intend to have the petition revoked.
VSC responded that, while it has been standard INS procedure to consider such notification a requirement for revocation, they would consult with INS headquarters to see whether the procedure should be changed.
I-485s : Retrieving Petitions Sent to Consulate
Employment-based immigrant petitions (I-140s) contain a notation as to whether the beneficiary plans to file the I-485 adjustment of status or is instead choosing to process at a consulate. Often the person indicates the choice of consular processing, only to later change his/her mind and file for adjustment. Or sometimes, in cases where the intent may not be clear, a file may be sent to the consulate by mistake.
In instances when the I-485 is filed, INS must request the I-140 back from the consulate in order to adjudicate the I-485. AILA inquired as to whether it was possible to track such requests electronically, to avoid delays. VSC's reply was that this was not possible since the requests themselves are not automated in any way. Therefore, in order for an adjudicator to check whether the request was sent, it is also necessary to check the records manually. This additional, time-consuming, procedure would further delay cases.
On a more hopeful note, VSC indicated that in the past six months the file requests are being issued much more promptly so that, hopefully, any delays in such cases will be minimized from this point on.© The Law Office of Sheela Murthy, P.C.
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