California Service Center May 2004 Update
Posted Jun 04, 2004
Members of the American Immigration Lawyers Association (AILA) met with California Service Center (CSC) representatives in May 2004 to discuss procedural issues. We have highlighted some of the results of this meeting below.
Fingerprint Rescheduling
The CSC indicated that adjudicators have no way to distinguish between missed or rescheduled fingerprint appointments. After the applicant has missed two appointments, the adjudicator is likely to deny the I-485 application. It is therefore important that those who may be traveling or otherwise unable to attend the initially scheduled fingerprint date make every effort to appear at the second fingerprint appointment. This is not to be confused with the situation in which the USCIS requests fingerprinting more than once in a particular case.
We do note that I-485s cannot be approved without fingerprinting. Thus, delaying the fingerprinting could potentially delay the case.
One-Year Incremental H1B Extensions
AILA confirmed the CSC's policies regarding the circumstances under which it will grant a one-year incremental extension of H1B status beyond the six-year limit. These are known colloquially as seventh-year extensions. Of course, if qualified, extensions can be approved for eighth, ninth, and subsequent years, too.
The CSC confirmed that it will grant the extensions in certain, specific instances. [Note: This does NOT mean that these are the only situations in which the H1B extension will be granted.] First, in cases where the labor certification has been filed for more than 365 days, and is still being processed at the state level. Second, when the labor certification was filed and denied after 365 days and an appeal of the labor certification denial is pending. Third, when the labor certification was approved after 365 days and an I-140 petition filed separately, on its own, is pending. Presumably, these situations were mentioned because there may have been some confusion about eligibility either by the Service Center or practitioners. Again, this does not mean that the H1B extensions will not be granted in other qualifying circumstances. Other examples not mentioned would be in cases where the labor certification has been pending more than 365 days and is at the federal level, or where the labor certification was filed more than 365 days earlier, approved, and the I-140/I-485 are both filed and pending.
In an interesting policy determination, the CSC will NOT grant one-year incremental H1B extensions if the labor certification has been filed and was approved 9 months prior but, for some reason, the I-140/I-485 package has not yet been filed. In addition, the CSC will NOT grant an H1B extension if the labor certification, filed over 365 days prior, has been approved but the beneficiary has run out of time in H1B status, even if the beneficiary intends to consular process for his/her immigrant visa. This is presumably because an H1B extension is only available for a person maintaining H1B status on the date of filing the extension.
I-824s
Some AILA members expressed concern that I-824s requesting consular processing are not forwarded to the National Visa Center (NVC) after they are approved. The CSC explained that the I-140 petition is sent to the NVC for consular processing, but the I-824 is not sent to the NVC. The I-824 is not required by the NVC to initiate processing. CSC also explained that there is no process within the USCIS structure to bypass the I-824 approval in order to have the I-140 forwarded to the NVC.
We trust that this information helps our MurthyDotCom and MurthyBulletin readers, as well as clients of The Law Office of Sheela Murthy with cases pending or to be filed at the CSC. We will continue to provide updates of policies and procedures at the CSC and other Service Centers when available for your benefit.
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