NSC Update : May 2004
Posted May 07, 2004

Many MurthyDotCom and MurthyBulletin readers have cases pending with the Nebraska Service Center (NSC). We provide this information for them as well as for those interested in following the trends at the USCIS Service Centers, for guidance on how their cases may be analyzed. Some of the information below also applies generally to all cases, whether or not filed at that NSC.

I-140/I-485 Processing

As regular MurthyDotCom and MurthyBulletin readers know, effective April 30, 2004, there have been some changes in the way that I-140s and concurrently filed I-140/I-485s are processed. The announcement was in our April 23, 2004 MurthyBulletin article, New Procedures for Concurrently Filed I-140/I-485 Cases, available on MurthyDotCom. We have received many questions on this topic. Note that this is not a change in the law. All of the laws and policies regarding concurrent filing and AC21 portability remain in effect. What has changed is the internal USCIS system for processing concurrently filed I-140/I-485 cases. Of course, changes in the timing of case adjudications can have significant legal implications, particularly in light of AC21 portability requirements.

The NSC has stated that, as of April 1, 2004, they moved the I-140 cases to the same "product line" as I-485s. This is in keeping with the need to implement the recent memo on adjudication of concurrently filed cases. The concurrent adjudication began on April 30, 2004. The concurrent processing will be based on the receipt date of the I-140 petition. The goal at the NSC will be to treat I-140s filed non-concurrently with the same priority as concurrently filed cases. Thus, they are going to try to keep the processing times the same for both types of cases. They concede, however, that they may not be able to accomplish this goal in the short term due to the current procedural changes. The processing time for I-140s filed non-concurrently is a particularly important issue for those cases designated for consular processing, since they do not involve an I-485 filing. The consular processing procedure historically has been faster than the adjustment of status procedure. The changes in processing procedures, with faster turnarounds for concurrently filed cases, may change this timeframe.

H1Bs Cap Determination Preliminarily Based on Form I-129W

The H1B cap continues to be the most significant H1B issue. Some cases are cap exempt. This is based upon the H1B beneficiary's having been previously counted against the cap or the petitioning employer's fitting within certain limited exemptions. The NSC procedure for determining whether a case is cap exempt is to have the contractor review the accompanying Form I-129W. The case will be accepted if the I-129W indicates that the case is cap exempt. There is no review by an adjudicator at the point of case acceptance. The adjudicator will review the cap issue once the case is ready for review. If the eligibility for cap exemption is not clear, the adjudicator will issue a Request for Evidence (RFE). If the case is filed with a starting date prior to October 1, 2004, and it does not fit within the cap exemptions, then it will be denied. Thus, the fact that a case claiming a cap exemption is accepted for filing, the filing fee cashed, and receipt notice issued, does not mean that the cap issue has been favorably resolved.

H1Bs Exempt from Cap if "Affiliated" with a University

One of the exemptions from the cap is for institutions of higher education, generally meaning colleges or universities. Nonprofit affiliates of these institutions of higher education are also cap exempt. The NSC confirmed that there is no guidance on the meaning of affiliate. This is a common issue for medical residents who, in some situations, qualify for H1B status. The petitioning hospitals must demonstrate their affiliation with a university. The level of required affiliation is not defined under law. The NSC simply stated that they require some sort of documentation to support the claim of affiliation.

H1B Extensions Based on BALCA Appeal

The NSC confirmed that all cases filed prior to the February 17, 2004 cap announcement will be counted against the 2004 cap. Thus all of the FY2005 numbers available starting October 1, 2004, should be available for the FY2005 cases. The NSC also confirmed that it is possible to obtain an H1B "seventh-year" extension based on a labor certification that was filed over 365 days earlier, but is on appeal. Even if a labor certification filed over a year ago has been denied but has been appealed to the Board of Alien Labor Certification Appeals (BALCA), it is still an appropriate basis for extension of the H1B.

Delays in Adjudicating Reentry Permits Risky for PRs

All requests for reentry permits, for permanent residents (PRs) traveling abroad for a period of a year or longer, must be submitted to the NSC. The processing times for these reentry permits has often been taking a year or longer. This creates concerns for permanent residents who file the request from within the United States, as required by law, but depart prior to its approval. The reason is that, if the reentry permit application is ultimately denied and the person does not enter the U.S. within one year of his or her departure (incorrectly assuming that the application will be approved), the person is deemed to have abandoned his or her intent to maintain permanent resident status in the U.S. The NSC stated that, during March 2004, they made significant progress processing reentry permit applications and that they were working on cases filed in January 2003 as of April 1, 2004. Their goal is to adjudicate two months' worth of cases each month, to reduce the processing times to within one year. This timeframe would work in most situations. Most people have some advance warning prior to their lengthy departures. They could file their cases a month or more before departure and then, hopefully, have the reentry permit application approved and in hand prior to having been outside the U.S. for a year or longer. The one-year timeframe is important, because the green card itself may be sufficient for reentry to the U.S. after a maximum departure of one year. After a year outside the U.S., the person should have obtained the reentry permit and other evidence of the intent to maintain permanent resident status in the United States.

We will continue to keep MurthyDotCom and MurthyBulletin readers updated on the policies and procedures at the USCIS Service Centers.