NEW POLICY ADDRESSING LONG PENDING CASES DUE TO LENGTHY FBI CHECKS
On February 28, 2008, the USCIS issued the following questions and answers regarding their new policy addressing immigration application processing delays caused by the lenghty wait for FBI name checks.
Question 1: What applications are affected by this policy change?
Answer: Applications included in this policy are:
• I-485, Application to Register Permanent Residence or Adjust Status;
• I-601, Application for Waiver of Ground of Inadmissibility;
• I-687, Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act; and
• I-698, Application to Adjust from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603).
Question 2: How has USCIS changed its national security requirements?
Answer: USCIS has not changed its background check policies for naturalization applications. Recently, the agency did modify its existing guidance for certain applications where the immigration laws allow for the detention and removal of individuals if actionable information from a FBI name check response is received after approval.
No application for lawful permanent residence will be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably.
Question 3: How has USCIS changed its adjudications requirements?
Answer: For the above application types, including applications for lawful permanent residence, USCIS will adjudicate the application based on all required evidence outlined in applicable law and regulation if the application is otherwise approvable, outside of normal processing times, and the FBI name check request has been pending for more than 180 days.
Question 4: What happens if USCIS later receives adverse information from an FBI name check?
Answer: In the unlikely event that Department of Homeland Security (DHS) receives actionable adverse information from the FBI name check after the application is adjudicated, DHS may detain the applicant and initiate removal proceedings.
Question 5: Why is this policy being implemented?
Answer: This policy change responds to a 2005 DHS Inspector General recommendation that USCIS better align its background check screening policies with those of U.S. Immigration and Customs Enforcement.
Question 6: Is this policy consistent with the national security priorities of USCIS and the Department of Homeland Security?
Answer: Yes. Applications for lawful permanent residence will not be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably. In addition, in the unlikely event that DHS receives actionable adverse information after the application is approved, removal proceedings may be initiated.
Question 7: How many applications for lawful permanent residence are immediately affected by this policy change?
Answer: USCIS is aware of approximately 47,000 applications for permanent residence (I-485) cases that are otherwise approvable but have an FBI name check pending. A portion of these cases are both outside normal processing times and have an FBI name check that has been pending for more than 180 days. These cases will be subject to processing under the new policy. USCIS anticipates the majority of the cases that can now be adjudicated will be processed by mid-March 2008.
Question 8: Does this policy change affect naturalization applications?
Answer: No. There is no change in the requirement that FBI name check, FBI fingerprint and Interagency Border Inspection Services (IBIS) check results be obtained and resolved prior to the adjudication of an Application for Naturalization (N-400).
Question 9: How long will it take for USCIS to work through the cases affected by the policy change?
Answer: USCIS has begun identifying cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly. USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid-March 2008. We recommend customers wait until March 10 before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.
Question 10: The memorandum identifies I-485, I-601, I-687 and I-698 forms. Is there a plan to include other forms, specifically nonimmigrant and naturalization, in this policy?
Question 11: Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if their case is outside of normal processing times and they believe their application meets the criteria of this new policy?
Answer: For pending applications outside of normal processing times, we recommend that customers wait until March 10, 2008, before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283. This procedure is for customers who have been previously informed that their case is pending due to the FBI name check. (Cases that are still pending within the processing times will be completed when the related adjudication actions are completed.)
Question 12: Will USCIS automatically notify an applicant to appear at an Application Support Center, (ASC) if his or her fingerprints have expired?
Answer: Applicants will be notified through an appointment notice if new or updated fingerprint checks are needed.
CLOSING THE F1 GAP: NEW RULE EXTENDS F1 STUDENT STATUS FOR PERSONS WITH PENDING H1B PETITION
On April 18, 2008, the U.S. Citizenship and Immigration Services (USCIS) announced that it would allow F1 students who are the beneficiaries of selected H1B petitions for fiscal year (FY) 2009 to request a change of status in lieu of consular notification.
This short-term measure follows an April 8, 2008 interim final rule that, among other actions, automatically extends the F1 status of qualifying students who are the beneficiaries of approved H1B petitions to cover the gap between the expiration of a student’s F1 status and the H1B employment start date of October 1. To obtain the automatic extension, a student must be the beneficiary of an H1B petition filed for the next fiscal year (with an October 1 employment start date) and have requested a change of status. For F1 student beneficiaries of petitions that USCIS subsequently rejects, denies, or revokes, or for those who violate their status, the automatic extension terminates at that time.
Since the rule was published after the filing period had closed for new FY 2009 H1B petitions, many petitioners of F1 students did not include a request for a change of status with the H1B petition. Instead, petitioners requested consular notification based on the assumption that these students would have been required to leave the United States to obtain an H1B visa at a consular office abroad.
USCIS has determined that it will allow petitioners of F1 students whose H1B petitions were randomly selected to receive an H1B visa number for FY2009 following the closure of the filing period, to now request a change of status on behalf of qualified beneficiaries, if such requests are received within 30 days of the issuance of the receipt notice.
To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice. Special email addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on USCIS’ website. Petitioners should e-mail their requests for change of status in lieu of consular notification upon receipt of the notice so the agency has the request before completing H1B petition adjudication. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number. Please do not contact the service center about requesting a change of status until after receiving the receipt notice.
E-mail addresses for requesting change of status are:
Vermont Service Center
Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
California Service Center
Premium Processing cases: CSC.firstname.lastname@example.org
Non-Premium cases: CSC.email@example.com
NOTE: If an F1 student, who is the beneficiary of a selected 2009 H1B petition, has a pending request to change to a status other than H1B but now wants to file under the process outlined above, he or she should withdraw the previously filed change in accordance with established regulations.
H1B QUOTA EXHAUSTED FOR FY2009; LEARN HOW USCIS SELECTS APPLICANTS FOR THE 65,000 H1B CAP
On April 14, 2008, the U.S. Citizenship and Immigration Services (USCIS) conducted the computer-generated random selection processes on H1B petitions, to select which H1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H1B petitions will be eligible to receive an H1B visa number.
USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H1B pool of petitions, for the 65,000 cap.
The approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.
Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.
For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.
USCIS has “wait-listed” some H1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.
USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.
NEW RULE PROHIBITS EMPLOYERS FROM FILING MULTIPLE H1B PETITIONS FOR SAME EMPLOYEE
On March 19, 2008, the U.S. Citizenship and Immigration Services (USCIS) issued an interim final rule that prohibits employers from filing multiple H1B petitions for the same employee. These changes will ensure that companies filing H1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H1B worker. To ensure a fair and orderly distribution of available H1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.
This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need. The interim final rule becomes effective upon publication in the Federal Register. Last August, President Bush announced that the Administration would be undertaking a series of immigration and border security reforms. The changes to the H1B filing process under this rule are an important part of that initiative.
On April 1, 2008, employers may file petitions requesting H1B workers for fiscal year 2009 employment starting on October 1, 2008. For fiscal year 2009, Congress has set a limit of 65,000 for most H1B workers. Additionally, the first 20,000 H1B workers who have a U.S. master’s degree or higher are exempt from the cap. Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.
This rule also stipulates that if USCIS determines the number of H1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H1B petitions in the random selection for the 65,000 limit.
The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H1B numerical limits. Those filing fees will not be returned.