Mr. Lee's Article - "Ten Interesting Tidbits to Help or Let You Understand Your Immigration Case"as published in World Journal Weekly on May 15, 2011
By Alan Lee, Esq.†
The following information has been culled from many sources and been the subject of our office meetings. Some of the 10 points which are covered may provide helpful tips to those applying for immigration benefits. Others may allow for understanding of how the process works by agencies administering benefits and enforcement. Overall we hope the article helps the reader.
Where the beneficiary is overseas in an I-130 marriage case, U.S.C.I.S. will not issue an RFE (Request for Further Evidence) to obtain a missing beneficiary signature on a Form G-325A biographic data sheet, but will adjudicate the I-130 form and the signature can be later collected at the consulate. To expedite Form I-131 reentry permit biometrics and delivery of the permit, an applicant should mark the outer envelope of the form I-131 package "Expedite" and include two prepaid mailers for delivery of both the ASC (Application Support Center) appointment notice and travel document. If the applicant provides an e-mail address or fax number, the Nebraska Service Center will be able the fax the ASC appointment to the applicant and the ASC will be willing to accept the duplicate copy of the appointment notice. Lawyers complained that because of the current I-140 form distinguishing between EB-3 (employment based third preference) professional and EB-3 skilled workers, several I-140 petitions have been denied because the box for "professional" was marked where the Nebraska Service Center found that the petition was not approvable as an EB-3 professional, but evidence submitted demonstrated that the petition was approvable under the skilled worker category. Nebraska stated that petitioners who notice the need for change prior to adjudication can e-mail directly to ncscfollowup.nsc@dhs.gov. It said that there was no need to phone prior to sending the e-mail communication. Where the applicant does not have a Form I-94 entry/exit card and is applying for adjustment of status to permanent residence based on family relationship, he/she should submit Form I-102 Application for Replacement/ Initial Nonimmigrant Arrival-Departure Document with the I-485 Application to Register Permanent Residence or Adjust Status to the Chicago Lockbox of the NBC (National Benefits Center). The Lockbox currently separates the I-102 from the I-485 if there are separate checks for each form. If there is one check payment for both forms, the forms stay together in the applicant's "A" file. Confusion has often appeared to be the order of the day where petitions or applications to U.S.C.I.S. are complex and thick, and attorneys and others have constantly asked for guidance from the agency on how to separate the different exhibits so that the petitions or applications are more readily understandable to the examiner. Of great concern has been the fact that the cashiers at U.S.C.I.S. Service Centers tend to snip off any tabs sticking out of the paperwork, whether the tabbing is done sideways or along the bottom of the papers. Following conversations with supervisors and line adjudicators at Service centers, the best current advice seems to be to separate the exhibits by plain sheets of paper, not colored, and mark clearly to what the documents or exhibits relate. If colored paper is used, it should be light-colored. There is a recent directive from U.S.C.I.S. Field Operations that where an applicant paid for an I-485 Application to Register Permanent Residence or Adjust Status, the application was denied, an NTA (Notice To Appear) issued for the applicant to appear in the immigration court, and the case terminated by an immigration judge, the applicant will have to refile the I-485 application and pay the filing fee again. On H-1B cap exemptions based on relation or affiliation with institutions of higher education - until it issues further guidance - U.S.C.I.S. will give deference to prior determinations made since June 6, 2006, that a nonprofit entity is related to or affiliated with an institution of higher education absent any significant change in circumstances or clear error in the prior adjudication. A petitioner should provide U.S.C.I.S. with a copy of the prior I-129 form and attachments, I-797 approval notice, any documentation submitted in support of the cap exemption, and include a statement attesting that the organization was approved as cap exempt since June 6, 2006. U.S.C.I.S. has come out with a proposed rule for a new H-1B employer registration system with 60 days comment beginning March 3, 2011. The rule is not targeted for this year's H-1B cap allotment since the 60 day period will end on May 2, well past the beginning date of April 1, 2011, for the initial acceptance of cap subject H-1B petitions. Briefly registration will be free, companies can register applicants as many times as they want and CIS (Citizenship and Immigration Services) will accept the first valid registration and reject any subsequent duplicative requests. Employers will file electronically with U.S.C.I.S. during the registration period beginning no later than March for a minimum period of two weeks and include basic information such as the employer's name, EIN, mailing address, authorized representative's name, job title, contact information (telephone and e-mail address), beneficiary's full name, date and country of birth, citizenship, gender, passport number, and any other information required by U.S.C.I.S. A Guangzhou American consulate initial rejection notice for a cook case was interesting in asking for among other items the cook's official blue license/certificate; and a VHS videotape or VCD/DVD showing the cook preparing and cooking from start to finish, Cantonese/Sichuan,/Beijing/Japanese/Western/dishes (whichever applicable) including at least ___ fish dish and ___ vegetable dish. It also stated that the video tape or VCD/DVD should not have any cuts or edits, show the cook's face and hands at all times, and include chopping, ingredients and final presentation. The illegal practice of having one's passport marked with official looking stamps of another country showing entry/exit to either "prove" that a person spent more time or less time outside the United States is no longer as effective as in the past due to new tools by CBP (Customs and Border Protection). People on visiting visas who have spent much time in the States are tempted to show that most of their time has been spent in their homeland, and those who hold U.S. permanent residence who have spent much time in their homelands are tempted to show more U.S. physical presence. That is because visitors spending too much time in the States may be thought of as non-bonafide visitors, and permanent residents spending too much time outside the U.S. may be in danger of losing their green cards for not keeping up their residence in the States. Making up your own "backdate" stamps when you return home does not usually now work according to a recent newspaper article focusing on people from the Philippines who tried to backdate arrival dates and were caught by CBP. Proof of travel in and out the United States is now available through various databases. The article cited U.S. VISIT which monitors entries and exits and stores biometric/ biographic information; that carriers are required to furnish manifests of arriving/departing passengers to CBP; and that APIS (Advance Passenger Information System) is a web site interface by carriers to provide advance electronic information to CBP.
Many of the points presented above are technical, but being aware of one or two of them may save an applicant or petitioner time and headache in dealing with the agencies involved in immigration benefits or enforcement. Readers should keep in mind, however, that procedures and policies in the field of immigration are constantly changing and that today's good information is more than occasionally superseded by tomorrow's developments.
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