As reported in the last issue of Immigration Newswire, USCIS began using a newI-129 and I-140 filing system on April 1, 2006. This system has been termed"bispecialization." This change has led to some not entirely unexpected snafus:
1.) The Vermont Service Center, to which all I-129 petitions are now to be sent,has not yet sent out receipt notices for many petitions filed subsequent to April 3.This is particularly problematic for H-1B beneficiaries who filed the petition inorder to port to a new H-1B employer. Without a Receipt Notice in hand, it is notsafe to port and could result in unauthorized employment.
2.) Neither the Vermont nor the California Service Center Processing TimeReports includes any information about TN Petitions. Apparently TN petitionsare being processed, however, as our office has received at least one ReceiptNotice for a TN petition filed post-April 1st.
3.) We have seen indications that USCIS is not necessarily following theprocedures outlined in its Fact Sheet on bispecialization. For example, we filed anI-140 petition with the Vermont Service Center in March, before bispecializationtook effect, and received a Receipt Notice from the Vermont Service Center.According to the Fact Sheet, Vermont should continue the adjudication of thiscase. However, when checking the status of the case online, we discovered thatthe case had been transferred to the Texas Service Center for adjudication.
4.) The California Service Center Processing Time Report no longer has an I-140processing time listed, even though it has not yet adjudicated all of the I-140petitions filed prior to April 1.
The bottom line is that the USCIS' transition to the new bispecialization system islikely to cause problems in the processing of several cases, some of which will beinconsequential and others of which may take a long time to straighten out.
Benefits to I-360 Religious Workers Who Self-Petition
A little known and seldom used provision of immigration regulations permits anI-360 religious worker to file the petition on her own behalf. This provision isunusual. The only other employment-based immigrant visa category that allows aforeign national to self-petition is the Employment Based Second Preference"National Interest Waiver" category.Ordinarily, a religious worker who does not self-petition must intend to work forthe I-360 petitioner upon approval of her application for permanent residency. Ifthe religious worker changes jobs before obtaining permanent residency, a new I-360 may need to be filed. (There may be limited exceptions to this rule).
A religious worker who files the I-360 on his own behalf may open up a limitedtype of portability for herself, allowing herself limited flexibility in changing jobsprior to obtaining permanent resident status. Self-petitioning does not obviatethe requirement that the religious worker have a full-time, permanent U.S. joboffer. A U.S. religious organization must still write a letter of support on thereligious worker's behalf.
An example illustrates the benefit of self-petitioning. One of our clients recentlyfiled his own I-360 petition as an fill-in Pastor who was going to be perpetuallyreassigned to new churches within the district. It did not make sense for thechurch at which he was first assigned to file the petition on his behalf, because hewould not be working there any more by the time his green card application wasapproved. Therefore, he self-petitioned and we explained his unique pastoralposition in the denomination. The arrangement was that he would be paid bywhatever church he was currently assigned at and that the district wouldguarantee to pay his salary in the event the local church was unable to do so. Boththe I-360 petition and the immigrant visa application were approved.
While self-petitioning does not allow unlimited portability to new jobs, it doesprovide some flexibility to accomodate for unusual religious worker positions.
Department of Labor Backlog Reduction Efforts
When the Department of Labor implemented the new "PERM" system for thefiling of labor certification applications on March 28, 2005, all labor certs thatremained pending under the old filing system got stuck in a backlog. Those old,unadjudicated applications initially were housed at the Department of Laborstate or regional offices that were responsible for adjudications. PERM did awaywith the DOL state and regional offices. All labor certifications are nowadjudicated by an electronic matrix and are reviewed by DOL staff at one of twoNational Processing Centers. Meanwhile, the pre-PERM labor certs that were stillpending at the local offices were shipped to what were initially called BacklogReduction Centers, and have since been re-named "Backlog Elimination Centers"in DOL's apparent effort to seem very serious about adjudicating those lingeringcases.
A banner appeared on the PERM web site a few months ago stating that thebacklog would be eliminated in 18 months. A month later, it was changed to statethat it would be eliminated in 19 months. It now says 18 months again. Accordingto the Biweekly Stakeholders Call between the American Immigration LawyersAssociation and the DOL, held April 17, 2006, DOL states that it is on course toeliminate the backlog by September 30, 2007, meaning that all of the cases thatremain pending at the Backlog Elimination Centers should be adjudicated by thatdate.
Many of our clients had labor certifications filed as long ago as 2001 and have notyet received any word on the status of their case. At the time those cases werefiled, not all DOL offices had a practice of acknowledging their receipt of laborcertification applications. Therefore, the only confirmation we have that thosecases were received is Federal Express tracking information. The BacklogElimination Centers are not providing any information about the status of cases.People are thus left in the dark wondering what is happening to their application.
Changes to I-864 Affidavit of Support Filing Requirements
Family-based immigrant visa applicants, and certain employment-basedapplicants, are required to present an I-864, Affidavit of Support as part oftheir adjustment of status or consular processing applications. USCIS hasrecently revised I-864 filing requirements that pertain to Adjustment of Statusapplicants. Previous USCIS policy required affidavit of support sponsors toprovide their last 3 years of federal income tax returns and W-2 statements insupport of the affidavit. Under the new guidelines, the sponsor need only providethe most recent year's Federal income tax return. USCIS has also recentlyclarified that income from unauthorized employment can be counted toward theincome requirement on an Affidavit of Support.
In March, the Department of State adopted similar guidelines for consularprocessing applicants, meaning that I-864 sponsors for consular processingimmigrant visa applicants only need to file their most recent year's tax return andW-2 statement. The Department of State guidance includes additional changesthat do not apply to adjustment of status applicants: (1) the affidavit of supportsponsor for Consular Processing applicants is not required to have the I-864 formnotarized since the form is signed under penalty of perjury; and (2) the sponsorfor a Consular Processing applicant need not supply a letter of employmentunless required to do so by a consular post because the post doubts the veracity ofthe income stated on the affidavit.
USCIS Issues Fact Sheet on Immigration Security Checks
Most USCIS petitions and applications undergo some form of security clearancebefore an approval notice can be issued. The lengthiest security clearances areconducted on adjustment of status and naturalization applications. We have hadsome clients who have had to wait over a year for a security clearance to gothrough. Because security clearances are conducted by agencies outside of theDepartment of Homeland Security, USCIS has no control over how quickly theclearances are processed. Therefore, no type of intervention, includingintervention by a U.S. Senator, can speed up a security clearance.USCIS recently issued a Fact Sheet on how immigration security checks work. Itprovides some helpful information about the types of clearances that areconducted and explains why security checks can sometimes take so long.
