USCIS Update – June 2004 Posted Jun 18, 2004; updated Jul 01, 2004 ©MurthyDotCom At the American Immigration Lawyers Association (AILA) Annual Conference, held June 9-13, 2004 in Philadelphia, PA, senior officials of the United States Citizenship and Immigration Services (USCIS) provided updated information to those present. We share this useful information with MurthyDotCom and MurthyBulletin readers. ©MurthyDotCom Direct Telephone Access with Service Centers ©MurthyDotCom Considering the complaints USCIS has received about the customer service line they established, it was explained that they are working toward reconnecting callers directly with the various Service Centers. As many MurthyDotCom and MurthyBulletin readers know, there is currently no way to contact the USCIS Service Centers directly with questions about pending cases. All calls must go through the National Customer Service Center (NCSC). There is a plan to have better telephone technology that will track telephone calls made by individuals to the USCIS. ©MurthyDotCom RFE Memo ©MurthyDotCom AILA members questioned Mr. Yates about the potential ramifications of his May 4, 2004 Memo regarding Requests for Evidence (RFEs) (Yates RFE Memo). This Memo was discussed in our May 7, 2004 MurthyBulletin article, USCIS Memo: More Denials, Fewer RFEs, available at MurthyDotCom. Mr. Yates indicated that, if a case can never be cured of a defect, such as an I-130 petition filed by an uncle for a nephew or a niece which is a non-qualifying relationship for I-130s, the case should be denied without an RFE. However, if the case could potentially be cured of the defect through a proper RFE response, supplying a missing birth certificate, for example, the adjudicator should issue an RFE. ©MurthyDotCom AILA members expressed their concerns that the adjudicators may not interpret the Memo in the spirit that Mr. Yates may have intended. Mr. Yates indicated that he will have town hall meetings with the adjudicators to explain the intent of his Memo. If he sees an increase in denials and subsequent Motions to Reopen for cases that were not issued RFEs or if AILA members send in sufficient denials where an approval or RFE should have been issued, he will consider revoking the Memo or issuing a clarification. ©MurthyDotCom Ability to Pay Memo ©MurthyDotCom Mr. Yates was also asked to explain his May 4, 2004 Memo regarding the Ability to Pay in I-140 cases (Yates Ability to Pay Memo), which was described in our May 21, 2004 MurthyBulletin article, USCIS Memo on Ability to Pay, also available at MurthyDotCom. Again, Mr. Yates stated that he intended to make it easier, and not more difficult, to obtain an I-140 approval. Though the statute only requires evidence that a company is bona fide, the regulations require evidence of ability to pay. Mr. Yates mentioned that it is possible that the ability to pay regulations will be altered or eliminated in the future since they are not required by the statute. ©MurthyDotCom H1B Usage Only 16,100 through May 2004 ©MurthyDotCom The USCIS stated that, as of May 31, 2004, there were 16,100 H1B cap-subject cases pending or adjudicated by the USCIS. Based on these numbers, the USCIS does not anticipate that the FY2005 cap will be met before the fiscal year begins on October 1, 2004, as was previously feared. We caution readers not to become complacent, however, as there is no guarantee there will not be an onslaught of filings at any time in the future. The USCIS reminded AILA that its policy regarding cap cases is currently to assign a cap number at the time that the USCIS receives the H1B petition. Therefore, premium processing is not necessary solely to preserve a cap number. ©MurthyDotCom Diversity Lottery ©MurthyDotCom The USCIS is recommending that anyone who won the diversity lottery this year should file his or her I-485 application no later than July 15, 2004. Otherwise, the USCIS cannot guarantee that expedited treatment will be available to have the cases adjudicated by September 30, 2004, due to the security checks that are needed. Diversity lottery winners should file as soon as possible to ensure that the USCIS will have sufficient time to adjudicate their cases prior to the conclusion of this fiscal year. ©MurthyDotCom Receipt Notice Processing Times ©MurthyDotCom The processing times on the receipt notices are frequently incorrect. The USCIS acknowledges this issue and explained that it is a technological glitch that they are not able to change in the near future. Therefore, the USCIS recommends that all persons should follow the processing times posted on the USCIS WebSite rather than follow the estimated processing times on the receipt notices. ©MurthyDotCom Future Developments ©MurthyDotCom Mr. Yates intends to issue more clarifying AC21 memos over the summer or soon thereafter. It is unclear whether these memos will be beneficial. On a more positive note, the USCIS expects to publish an EAD regulation within the next few weeks. We anticipate that this regulation will change the EAD validity dates based on the approximate processing times at the various Service Centers or USCIS District Offices, plus another two months. The USCIS also plans to issue a favorable memo in the near future regarding the F and J status gap that has occurred in many cases. Although the USCIS was unwilling to make a firm commitment, a favorable memo allowing Fs and Js to stay in the U.S. and obtain the H1B approval with the I-94 card attached to the approval notice does appear likely. © The Law Office of Sheela Murthy, P.C.
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