CSC Liaison Update

On February 23, 2005, the California Service Center (CSC) provided representatives of the American Immigration Lawyers Association (AILA) with their views on various immigration issues handled at the CSC. This summary of the highlights of that report is provided for the benefit of MurthyDotCom and MurthyBulletin readers.

Filing Date is Date of Receipt at CSC

The CSC confirmed that they consider the filing date for any petition or Request for Evidence (RFE) response to be the date the CSC receives the filing; not the date that the petition is postmarked. The CSC recognizes case law and regulations that provide that if the due date of an RFE falls on a Saturday, Sunday, or legal holiday, the RFE response must be received by the CSC on the following business day. It is always best, however, to file papers in advance and not rely upon any discretionary grace periods.

Possible Increase in Case Reviewers for I-140s/I-485s

The CSC indicated that they will continue to evaluate whether additional staff is needed to process I-140 petitions and I-485 applications once PERM has been implemented. The reason for this is that, once the processing time for labor certifications is reduced under PERM, there likely will be more cases eligible for concurrent I-140 and I-485 filings, except for those countries subject to retrogression in the EB3 category.

Denial if No VisaScreen Certificate by RFE Deadline

The CSC has indicated that they will deny an I-485 application if an RFE is issued for a VisaScreen Certificate and the applicant is unable to obtain the VisaScreen Certificate during the response period for the RFE. There are generally no extensions available to respond to the RFE for this issue.

90-Day Pilot Program Cases

The CSC has not accepted additional I-140/I-485 cases for the 90-day pilot program since September 30, 2004. Of the cases that were accepted for processing under this program, approximately 300 remain pending due to the need for security clearances.

Employer’s Ability to Pay

The CSC stated that a Form 10k from a publicly-traded company should be sufficient to prove the employer’s ability to pay the required prevailing wage. I-140 petitions that include the Form 10k as part of the initial filing should not receive an ability-to-pay RFE. It is important to keep in mind, however, that this policy may change at any time. Should an RFE be issued notwithstanding, the petitioner should take all reasonable steps to reply to the RFE and not rely solely on the CSC’s opinion on this issue to request an approval. Submission of these CSC Liaison minutes, along with other evidence, would help to obtain the I-140 approval in most cases.

Second I-485 Filing

The CSC provides that it is possible for a dependent with a pending I-485 to file a second I-485 if s/he has an independent basis to file another I-485 application. Therefore, if a dependent applicant has, for example, his/her own I-140, I-130, or I-360 approval, that individual may file a second I-485 based on this approval. The files will generally be consolidated, however, so that the person will only have one A-number.

An alternative to filing a second I-485 is to submit a copy of the I-140, I-130, or I-360 approval with any documentation that is needed for a primary applicant’s I-485, such as an employment letter. It is important to take priority dates into account. One who has the option to pursue the green card as the dependent of a spouse who has an approved petition as well as through his/her own petition should always consider which priority date will likely generate the quicker decision on the case. This is particularly true in light of the retrogression of EB3 priority dates for nationals of India, mainland China, and the Philippines. While the CSC is stating that a second I-485 filing is possible, we have found that having more than one I-485 pending can create confusion in some instances and result in interviews for such applicants.

Fingerprinting

Fingerprints are frequently, but not always, scheduled within a couple of months of having filed the I-485. There were some cases at CSC in 2004, however, that inadvertently were not scheduled. The CSC is aware of this and is taking steps to have fingerprints scheduled for these cases. The CSC has also implemented new steps to better track the need for scheduling fingerprints to avoid this sort of oversight in the future. As most MurthyDotCom and MurthyBulletin readers know, though cases generally cannot be approved without fingerprints, there is no set time period after the fingerprints are taken that the USCIS is required to make a final decision on the case. Often, if the data used from the fingerprints expires, the applicant will need to take new fingerprints again.

Dependent I-485s Accidentally Approved First!

A dependent’s application cannot be approved until the primary applicant’s application has been approved. In some rare cases, however, the USCIS accidentally approves the dependent’s I-485 application prior to the primary applicant’s application. The CSC recognizes that, unless the USCIS takes this case to an Immigration Judge for rescission of the dependent’s I-485, the dependent is a lawful permanent resident and has all the rights of a lawful permanent resident.

It is important to keep in mind that this is the CSC’s opinion and may not be the opinion of a Customs and Border Patrol (CBP) port of entry inspector. Should the USCIS make such an error, the dependent applicant should understand the potential risks prior to relying on the lawful permanent resident status, especially if the person intends to travel outside the U.S.

One-Year Incremental H1B Extensions

The CSC confirmed that one-year incremental extensions of H1B status are approvable if the I-485 is pending, even if the labor certification and I-140 petition have already been approved.

No Processing of Petition / Application While Appeal is Pending

The CSC relies on a Legacy INS policy memo to support its position that, if a petition or application for an immigration benefit is re-filed while an appeal is pending for that immigration benefit, the CSC will not process the new application or petition until a final decision is made on the appeal. If the new application or petition is filed for the same applicant or beneficiary, but is different from the one on appeal, the CSC will evaluate whether the two are sufficiently different to warrant the processing of the new petition or application without waiting for an appeals decision. If they do not find the new application or petition sufficiently different from the first, they will not process it until the appeal process is complete on the original petition or application.

EAD Extensions Valid from Date of Approval

The CSC issues EADs with validity dates that begin on the date of approval. This means that extensions will generally not be valid from the date after the expiration of the earlier EAD card but, instead, may be before that date if the EAD application is filed too early. This differs from what had been happening for many years previously, so it is a factor to consider in filing an EAD extension only about 4 months before the expiration date instead of 6 months before the EAD expiration date.

Inquiries on Cases

The CSC has indicated that, if an inquiry results in a response of “This case is undergoing detailed review” or “Your application is pending review and additional system checks,” another inquiry should not be made on that case until at least 180 days have passed.

We at The Law Office of Sheela Murthy, P.C. will continue to update MurthyDotCom and MurthyBulletin readers about such important and helpful policies and procedures at the various USCIS Service Centers.