MAJOR SHIFTS IN IMMIGRATION ADJUDICATIONS LOCATIONS AND IN AFFIDAVITS
OF SUPPORT
By Alan Lee, Esq.†‡
In this article, we will discuss the major changes involving relocations
of adjudications as this appears to be greatly alarming a number
of individuals who have been receiving transfer notices of their
cases to other U.S.C.I.S. field offices and are wondering for what
reason and what the news portends. We will also discuss two issues
relating to I-864 affidavits of support, one a liberalization of
the documentation rule for adjustment of status to permanent residence
(I-485) cases and the other a possible expansion of liability for
the I-864 affiant.
1 Tectonic plates appear to be shifting within U.S.C.I.S. field
offices in the adjudication of cases. On May 31, 2005, U.S.C.I.S.
mandated that all I-90 replacement green card applications would
henceforth be filed at one location in Los Angeles instead of at
local district offices, service centers, or application support
centers.
Currently on the East Coast, thousands of employment based I-485
adjustment of status cases are being transferred back to the Vermont
Service Center from district field offices to which they were earlier
transferred by Vermont. Approximately 10,000 cases transferred to
the New York City and 7000 to the Washington D.C. field offices
have reportedly been transferred back to the Vermont Service Center
to assess whether interviews can be waived under the most recent
guidelines. Those were contained in the Service memo of January
5, 2005, on revised interview waiver criteria for I-485s, which
included a list of situations previously requiring interviews which
can now be waived -illegal aliens where there is a need to validate
legal status other than lack of evidence of inspection, admission
and/or parole, IDENT immigration violators whose cases will be held
for officer review at the time of the adjudications, cases in which
aliens have questionable qualifications, fingerprints rejected two
times, Class A or B medical conditions, or where their cases feature
second filings, apparent fraud, or "A" files not being
able to be located in time for adjudication. In discussing such
transfers the Washington office said that the criteria were that
the cases had originally been transferred to the local office for
adjudication, had not been scheduled for initial or rescheduled
interviews, and were filed with the Service Center prior to January
1, 2005.
New York City CIS has reportedly transferred substantial numbers
of immediate relative family based cases that have already been
interviewed and I-751 removal of conditional basis of residence
in marriage cases to the California Service Center. The Washington
D.C. office is also relocating some but not all of its I-485 "continued"
cases (cases that were "continued" and not completed on
the date of interview) to the California Service Center. The purpose
of such transfers is to complete the adjudication of cases without
further interviews. Although there are the differing views concerning
the effect on cases being transferred to California with some envisioning
denials en masse as many of the continued cases may have been held
by examiners hesitant to issue denials, we believe that the move
should (at this time at least) be considered good news as it will
accelerate the adjudications and an officer at the California Service
Center may have a different perspective on a case than the original
examiner.
In further realignment news, the Texas Service Center is now assisting
the Nebraska Service Center with asylum adjustment cases. As per
the American Immigration Lawyers Association/Texas Service Center
liaison meeting of October 3, 2005, approximately 20,000 cases had
been transferred with file dates from January 2002-June 2002. The
Texas Service Center was also data entering newly filed political
asylum adjustment cases so that I-485 receipts with SRC numbers
would be issued. The Nebraska Service Center's explanation is that
the transfer of these cases is not just part of the agency's backlog
elimination strategy, but also expected to be a permanent arrangement.
The Nebraska Service Center and Texas Service Center will be partner
service centers under what Headquarters is calling a "Bi-specialization"
plan. Eventually, I-485 and other workloads still to be published
will be worked only at the two centers while I-129s and other work
loads still to be determined will be worked only at the California
Service Center and Vermont Service Center.
As it is oftentimes confusing to applicants to receive or otherwise
obtain notices of transfers to other service centers and field offices,
this small rundown of strategy within the agency will hopefully
give rest to nervous minds.
2 In a November 23, 2005, U.S.C.I.S. policy memorandum regarding
I-864 affidavits of support, the agency has significantly liberalized
the requirements for supporting documentation. For any affidavit
of support in connection with an I-485 filed on or after November
23, 2005, the sponsor is only required to submit the tax return
from the previous year instead of from the previous three years.
The memo gives as example that a sponsor now would only have to
provide the 2004 federal income-tax return. For I-485s filed before
the date of the memorandum, in which officers encounter situations
where the sponsor included the most recent tax return but not one
or both of the two earlier returns, adjudicators are no longer required
to issue a request for evidence (RFE) for the missing earlier returns.
When the sponsor files a photocopy of the tax return but does not
submit forms W-2 or 1099, an officer can accept such without issuing
a "RFE" if he/she establishes that the information on
the tax return is true and correct. By so stating, the Service memo
appears to endorse acceptance of a photocopy of the tax return along
with original W-2s or 1099s. To further point this up, the memo
states that officers shall accept an IRS generated transcript as
a true and correct copy of the sponsor's return and that it is not
necessary for U.S.C.I.S. to request a missing W-2 or 1099 if the
sponsor submits a transcript, rather than a photocopy of the tax
return. Other documentation usually submitted with an I-864 such
as employment letters, paystubs, or other financial data are now
seen by the Service as only relevant for RFE purposes under three
conditions: If the tax return reflects income below the poverty
guidelines; if the record does not already contain additional evidence
establishing that the sponsor meets the current income requirements;
or if there is a specific reason (other than the passage of time)
to question the truth of the income stated on the I-864 form or
the accompanying documents. The memo further states that in the
event the tax return and/or the evidence in the file does not establish
that the sponsor meets the poverty guidelines, the adjudicator shall
request current year income information and not additional information
from the year the sponsor signed the form I-864. The memo ends by
warning that local offices of U.S.C.I.S. are no longer free to set
their own policies on whether to require submission of the form
I-864 at time of filing or at the time of adjustment interview and
that all applicants are now required to submit the I-864 form with
their adjustment applications.
Readers should remember that this memorandum is confined to adjustment
of status cases and not to cases requiring consular processing.
Unless an expansion of this memo is adopted by the Department of
State, persons submitting I-864s for consular processing cases should
continue to submit all three years along with other documentation
to prove current ability to meet the threshold set forth in the
poverty guidelines.
3 The case of Stump v. Stump from the U.S. District Court, Northern
District of Indiana, provides instruction and caution to individuals
who would flippantly sign an I-864 affidavit of support. The I-864
language in Part 7 makes individuals liable to the U.S. government,
state or local agency or private entity that renders means tested
benefits to the supported alien until the time that the alien becomes
a U.S. citizen, permanently leaves the U.S., passes away, or works
in this country for 10 years (40 quarters). Stump v. Stump seeks
to further expand liability in a suit by the alien to force the
affiant to pay for the alien's support at the promised 125% of poverty
guideline amount under the theory that the alien is a third-party
beneficiary to the contract between the affiant and the U.S. government.
In the case, the alien (ex-wife) sued her former husband, a U.S.
citizen, for financial support owing to her under the terms of the
affidavit of support he signed. The district court calculated the
poverty guideline at 125% for a party of one from the date of their
separation to the present time giving the ex-husband a set-off for
the amounts that the wife had since earned. To the ex-husband's
argument that the ex-wife had not made a good-faith effort to procure
employment, the court stated that such a failure did not end a sponsor's
obligation to provide support. The court then entered judgment in
favor of the ex-wife, noting that the statute outlines the events
that terminate the ex-husband's obligation, and until one of those
events transpired, the ex-husband had a continuing duty to maintain
the ex-wife at 125% of the federal poverty level.
In the same manner that the ex-wife could sue her ex-husband, it
would appear under the logic of the decision that other aliens can
bring suit against their affiants regardless of the relationship.
It should of course be noted that Stump v. Stump is only a district
court and not appellate court ruling and may certainly not represent
the last word on liability to the alien who wishes at any time before
the conditions transpire to enforce the support obligation against
a sponsor or co-sponsor.
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