Nov. 2000 AILA Liaison Meeting with U.S. Department of State
Posted Dec 02, 2000

From time to time, we report in the MurthyBulletin on discussions between government officials and representatives of the American Immigration Lawyers Association (AILA). On October 30, 2000, a liaison meeting was held with the U.S. Department of State's (DOS) Visa Office in Washington DC. The meeting covered a broad range of issues, and we report below on some of the topics of interest to our readers.

The DOS view on INS Prohibition of "Dual Track" GC Processing

In an article in the October 27, 2000 MurthyBulletin, we described an INS policy memo prohibiting a green card applicant from simultaneously pursuing adjustment of status (I-485) and consular processing. We opined that this policy appeared inconsistent with the DOS view, announced in its September 2000 cable, which expressed a willingness to process immigrant visa (IV) cases at consulates for persons with pending I-485s. In our earlier article, we promised an update when the DOS position on the INS policy came to light. The following is that update.

The DOS does not have a policy on dual track processing; rather, it has decided to respect the INS policy. The understanding based upon the INS memo is that for a person with a pending I-485 who files an I-824 (cable notification request) for consular processing, the I-824 is deemed a request for withdrawal of the I-485. The person would have to withdraw one or the other. Processing of I-485 and I-824 forms is within the purview of the INS; consequently, the DOS regards the INS policy as binding on both agencies.

As mentioned in our earlier article, the INS memo declares dual processing to be a waste of INS resources and also raises a concern that some people may be counted twice against the IV quota. DOS mentioned those same issues as further reasons why they would defer to INS on the matter. 

Movement of Monthly Cut-Off Dates

DOS officials began with a recap of the circumstances during fiscal year (FY) 1999 and 2000, and how those developments affect the current situation of the monthly cut-off dates for nationals of various countries in both employment and family based cases. As many readers will recall, there were major advances in the cut-off dates in the monthly Visa Bulletin chart during from the end of FY 1999 (October 1, 1998 to September 30, 1999) into the early part of FY 2000. Specifically, most employment-based applicants became "current" in August 1999 and the chart continued to show "current" status for several months, with the numbers finally regressing in March of 2000. There were also significant advances in family-based categories.

At present, the INS is completing many of the I-485s filed in 1999. (Actual processing schedules vary from one INS Service Center to another). As more cases are approved, more numbers are subtracted from the quota, reducing the possibility of further advances in cut-off dates. On the family-based side, this means that the dates will move slowly in the current fiscal year (FY2001, ending September 30, 2001). On the employment-based side, the situation is different because of the new legislation (ACTA, which is described and explained in various issues of the MurthyBulletin in October and November 2000). ACTA changes the way visas will now be allocated. The DOS expects the effects of ACTA to become evident in the Visa Bulletin chart some time early in the 2001 calendar year.

DOS Returning H1B and Other Petitions to INS

Sometimes, when a person applies for a nonimmigrant visa, the DOS decides that there are reasons why the INS should not have approved the employer's petition. In such a case, the visa applicant generally receives a form letter indicating that the case is being returned to the INS. As described previously in the MurthyBulletin, the consulate then returns the petition to the INS Service Center with an explanation of the reasons why the INS should revoke the approval. This happens from time to time particularly with H1B and L1 Petitions. It is then up to the INS to decide whether to reaffirm the petition approval, or to send the employer a Notice of Intent to Revoke. The employer then has an opportunity to respond to the Notice, and the INS makes a final decision, based on all the facts and evidence presented by both parties. 

American Immigration Lawyers Association (AILA) attorneys expressed their concern to DOS officials about occasional long delays between the time that a nonimmigrant visa applicant is told the case is being returned to the INS, and the point at which the INS Service Center confirms it has received the petition back from the particular consulate.

The DOS advised AILA that the consulates do keep copies of all returned cases, so that it is possible to communicate with the post and request reconsideration of the visa application. Also, DOS suggested that to expedite processing in the INS Service Center's mailroom, DOS will now consider flagging the returned petitions with a special cover sheet so that these cases can be routed to an officer more quickly. 

Again, we hope that you find that our articles in the MurthyBulletin of such discussions between AILA and concerned governmental agencies and their officials who make decisions which impact the lives of those intending to live and work in the U.S., help you to understand the process and the importance of regular communication to make the process smoother for all of us.