ISD Update: June 27, 2002
Posted Jul 19, 2002

The Immigration Services Division (ISD) of INS headquarters held a teleconference on June 27, 2002 with the AILA liaison, to clarify a number of INS policy and procedural matters. As part of the MurthyBulletin's continuing effort to keep our readers apprised of any developments, the noteworthy issues are summarized below.

I-140s and Employer Ability to Pay Offered Wage

At the I-140 (Petition for Alien Worker) stage of an employment-based green card case, it is necessary to establish the sponsoring employer's ability to pay the prospective employee the wage offered. Essentially, it is considered that an employer cannot genuinely offer a position without the ability to pay the employee's salary. When the employer's tax returns do not reflect sufficient profit, there are a number of alternative methods to try and prove the ability to pay. In connection with this process, AILA Liaisons asked ISD whether an IRS W-2 Form, issued to the beneficiary by the employer, reflecting actual payment of the offered wage, would be acceptable in every case. The INS Service Centers agreed that this could be acceptable in some situations. They did not specify which situations would be inappropriate for proof of this nature.

IBIS Checks

The IBIS name check can result in a "hit" when the name being searched is a common name. Accordingly, in order to avoid delays, it is best to include some identifying documents with a physical description in order to distinguish the individual undergoing the IBIS check from another person with the same name who may have a negative background. The ISD has confirmed that copies of driver's licenses, social security cards, passport pages with biographical and physical descriptions and U.S. visas will be helpful in this regard. IBIS checks are performed on individual petitioners and beneficiaries, but not on corporate petitioners.

Address Changes

We previously reported on the importance of complying with the requirement to notify the INS of address changes. The INS plans to enforce these requirements far more strictly than ever before. See our article, Overview of AILA Annual Conference: 2002. 

In connection with the address change notification, ISD clarified that Form AR-11 is always required. This is true even in instances when an application or petition is pending and the particular INS office processing the case has a preferred address change procedure. In these situations, it is necessary to follow the preferred procedure and file an AR-11. It is important to note that an AR-11 is needed for all address changes. According to ISD, it is not sufficient to file forms containing a new address when filing an H1B petition or an H-4 application, or including the address on a new I-94 arrival document.