Updates from TSC and NSC : July 2006
Posted Aug 11, 2006
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Certain questions posed by the American Immigration Lawyers Association (AILA), regarding current procedures and policies at the Texas Service Center (TSC), were addressed in July and have been recently released by AILA. As regular MurthyDotCom and MurthyBulletin readers will recall, the TSC and the Nebraska Service Center (NSC) are sister service centers under the bi-specialization revision of filing and adjudication jurisdictions. Under bi-specialization, all I-140 petitions for foreign national workers are filed with the NSC and adjudicated either there or at the TSC. All employment-based I-485s, Applications for Adjustment of Status, are filed in the same manner. Thus, TSC policies and procedures are more likely to impact those who need to file and process I-140 immigrant petitions than previously, when only those under TSC's jurisdiction were affected. Bi-specialization is explained in our July 7, 2006 MurthyBulletin article, Phase 2 of Bi-Specialization to Begin July 24, 2006, available on MurthyDotCom.
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Original Filing Date is Basis for Processing Time in Transferred Cases
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There has been some concern over cases transferred to the TSC from other service centers in terms of processing dates - concern as to whether the dates of processing would be based on the date of receipt at the TSC or the date the case initially was received at the original service center. There were some indications that the cases would be relegated to the back of the line and processed based on the date they reached the TSC.
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Fortunately, the TSC has confirmed that cases will be processed based on the date of original filing. Thus, the transfer of a case should not create additional waiting times.
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Second I-140 Allowed without Revocation of Earlier I-140 Petition
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The TSC confirmed that, in some cases it is possible for the employer to file two or more I-140 petitions for the same beneficiary, based on a single labor certification, in multiple EB categories. If the job requirements are proper for EB2, the case could be filed in either category. Thus, multiple I-140s could be filed in some cases. If the first was filed in EB3, there would be no need to withdraw it in order to file in EB2. The TSC recommended submitting copies of the approved I-140 with the later-filed I-140 petition.
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This could be quite helpful in situations where the I-140 petition is incorrectly filed in the wrong, lower category. We do hear about such instances from time to time. It seems that if the I-140 was filed in EB3, but the case would meet EB2, the TSC would permit the re-filing of the I-140 petition without revocation of the earlier EB3 filing.
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Correction of Clerical Errors on Forms Submitted to USCIS
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TSC was asked how to correct clerical errors in filings. The example given was the selection of EB2 on an I-140, when the case is clearly EB3. The TSC advised that they will usually issue an RFE if the officer can surmise that there is a clerical error. If the attorney catches the error in time, s/he can try to communicate with the TSC through the AILA liaison. If an error in the case is not detected and corrected through the AILA liaison in time, however, or the USCIS does not issue an RFE, then the USCIS may deny that case. Such a case would have to be re-filed, assuming a re-filing is procedurally possible.
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Work as a Team with Your Law Firm to Obtain Approvals
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We take this opportunity to remind MurthyDotCom and MurthyBulletin readers to avoid mistakes in their immigration filings. Several things are within the control of the individual and the employer.
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First, the information used by the attorney generally comes from the client, the employer, and the supporting documents. The client can make sure that all information s/he provides is accurate. In immigration, dates are important. These should be checked and rechecked.
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The second step within the control of the foreign national and the employer is to read everything before signing any document/s. Immigration filings generally require a thorough review and signature by the parties. This gives everyone a chance to double-check the documents before they are filed. Take this opportunity; do not just sign, assuming that your law firm or attorney knows more about your case. The papers must always be carefully reviewed and then signed. There can be serious consequences for submitting false or incorrect information. So, take the time to make sure it is right before affixing your signature to a legal document. While cases should be subjected to multiple levels of review to catch mistakes, the client provides yet another safeguard if s/he takes the time to review the papers carefully before signing. The foreign national should double-check information concerning prior education or work experience, dates of birth and spellings of birth place, parents' names, etc.
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Ultimately, the success of any case depends on some level of teamwork between the employer, the employee, and the law firm. It is in the best interest of all parties, therefore, to work together to achieve a successful result.
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