NSC Holds Stakeholder Engagement on Business-Related Issues

On September 11, 2014, U.S. Citizenship and Immigration Services’ (USCIS’) Nebraska Service Center (NSC) held the latest in its on-going stakeholder engagements addressing business-related issues. NSC stressed that the engagement was for informational purposes only and answers are not binding on USCIS. NSC answered pre-submitted questions and then opened the session for additional questions.

I-140

Three question were submitted in advance of the engagement regarding the processing of I-140 petitions. The first asked under which I-140 petition category processing times for Schedule A Group II-based EB-2 petitions are reported and asked if USCIS could provide a separate report for Schedule A Group II-based EB-2 petition processing times. NSC explained that all schedule A EB-2 petitions are reported together, whether Group I or II and that, since the appropriate group cannot be determined until the adjudicator reviews the case, it is not possible to report processing times for Group II separately.

The second question asked if NSC is willing to implement premium processing for first and second preference I-140 petitions in the EB-1-3, Schedule A Group II-based EB-2, and EB-2 national interest waiver (NIW) subcategories, and whether there are any plans to do so in the future. NSC explained that premium processing is currently available for Schedule A Group II petitions and that there are no plans to expand premium processing for I-140s beyond that. NSC also explained that the decision to do so lies with Service Center Operations (SCOPS) and suggested the questioner email SCOPS.

The last pre-submitted I-140 question asked about the authority for NSC’s policy that only degrees issued by U.S.-accredited educational institutions can support an EB-2 classification. NSC explained that while, Matter of Yau, 13 I. & N. Dec. 75 (Reg. Comm. 1968), may be old, it is still the controlling law and it establishes, as repeated in the regulations, that a U.S. accredited institution must issue the degree. In follow-up questioning, NSC explained that the institution must have been accredited at the time the degree was awarded, not necessarily at the time of filing or adjudication.

I-765

One pre-submitted question addressed the fact that USCIS has not been issuing employment authorization documents (EADs) based on properly filed I-485s and approved I-140s within 90 days of filing the I-765, as required by 8 CFR § 274a.13(d) and that USCIS has not been meaningfully acting upon requests for issuance of interim EADs as required by 8 CFR § 274a.13(d) when an I-765 that has been pending for more than 90 days is brought to USCIS’ attention via a call to the National Customer Service Center (NCSC). NSC explained, as it previously has, that there was an increase in I-765 receipts for the months of April, May, and June, 2014 and this “bubble” of receipts caused a backlog in processing these applications; but NSC advises that it expects to be current within a few weeks. NSC again explained that, if an I-765 application has been pending for more than 75 days, the applicant or attorney should contact the NCSC at 1-800-375-5283 or use USCIS’ e-Request online tool to have the matter expedited. If more than 15 days pass after the NCSC is contacted and the issue has not been resolved or explained, NSC advises email the proper USCIS Service Center to check the status of the case.

In follow-up, one participant advised using e-request because she has found the NCSC unresponsive; another participant pointed out that I-765 is not in the e-request drop-down. NSC vowed to look into both these issues.

Additional Questions

In the follow-up questioning, one attorney asked about cross-chargeability when visa numbers are available for the principal alien but not for a derivative spouse from an oversubscribed country. In response, NSC explained that the derivative can cross-charge to the principal alien’s country even if the derivative filed his or her adjustment application later than the principal alien did, so long as the derivative is accompanying or following to join the principal alien.

In response to questions concerning the situation where a couple separates while the derivative’s adjustment application is pending, NSC explained that neither party is required to notify NSC of a separation or divorce, although either may do so. However, if the adjustment is erroneously granted, NSC pointed out that when the error is discovered, the derivative may be referred for rescission. NSC also explained that even where the couple has not divorced, the marriage must be bona fide so, where the couple is separated, even if on a trial basis, the file will most likely be referred to a local office for an interview.

Another participant asked if an alien (A) number is always assigned when an I-140 petition is approved. NSC explained that it is unless consular processing was requested.

In response to another question, NSC advised that if hardcopies of supporting documents for an efiled application have not been received at the time of adjudication, the application will not be denied; rather a request for evidence (RFE) will be issued. However, to avoid delay, it is best to send the hardcopy documents before the case comes up for adjudication.

An attorney with a number of cases pending at the NSC was advised that the best practice for handling G-28 changes of address, is to attach a spreadsheet listing each case and the corresponding A numbers and receipt numbers.

When asked how NSC ensures that long pending adjustment applications are processed before newer cases when visas become available, NSC explained that cases are staged not only in visa order but also in filing order so that when visas become available, a “first in, first out” process is followed.

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