Service Center Operations Update - July 2005
Posted Aug 19, 2005
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Liaisons from the American Immigration Lawyers Association (AILA) met with U.S. Citizenship and Immigration Services (USCIS) Service Center Operations officials in June and July 2005. Highlights of these meetings are provided for the benefit of MurthyDotCom and MurthyBulletin readers.
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Nonimmigrant Fees for Successors-in-Interest
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There is a $500 fraud prevention and detection fee that must be paid with the first H1B or L-1 petition filed by an employer for a particular employee. This seems simple enough, but the question was asked whether the fee is required if the filing is an extension request through an employer that is a successor-in-interest to the employer that filed the initial H1B or L-1 petition. An example would be if company A is bought by company B. If company B is regarded as a successor-in-interest to company A, then the USCIS confirmed when the former employees of company A need extensions of their H or L status; the $500 fraud prevention and detection fee would not be required. The fact that the successor-in-interest has a different Employer Identification Number (EIN) does not change this exception to the fraud fee requirement. Additionally, under the same logic, the ACWIA training fee of $750 or $1500 would not be required if the original company has filed the requisite number of extensions to be exempt from the training fee.
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I-485 Filing for Roving Employees
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The USCIS indicated that, if a roving employee's I-140 petition is filed with Service Center A where the company is headquartered, but the employee moves to Service Center B's jurisdiction before the I-485 is filed, the employee may file the I-485 with either Service Center A or Service Center B. The USCIS also noted, however, that if the I-140 petition is filed at Service Center A, and then the I-485 is filed with Service Center B, the I-485 must be held until the I-140 is adjudicated. It is not clear if this means no action will be taken or if it simply cannot be approved until the I-140 petition is adjudicated. Roving employees are those who do not have fixed work sites, but can be moved from location to location, depending upon the needs of the employer. This is common with IT contractors. The safer approach would be to file the I-140 petition and the I-485 application in the same Service Center to avoid additional delays or the need to transfer the file from one Service Center to another.
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Erroneous Rejections may be Irreversible
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At least one AILA member has reported that a case was erroneously rejected and sent for a refund, and the USCIS had indicated that there was nothing they could do. When questioned as to why the USCIS could not recover an erroneously rejected petition, the USCIS replied that rejected petitions sent for refunds are sent to an agency within the U.S. Department of Treasury. Therefore, anyone who has a case erroneously rejected should re-file as soon as possible rather than spend time trying to get the rejected case reopened.
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I-130 Petitioner Subject to Security Check
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The USCIS indicated that I-130 petitioning relatives are run through a security check. I-130 petitioners are U.S. lawful permanent residents and U.S. citizens. Even if the beneficiary does not trigger a hit in the security check, processing may be delayed if the petitioner has a hit in the system. It is not clear what is done with the information about the petitioner's background. It would seem that, if the petitioner is a permanent resident and the background reveals a criminal offense for which s/he could be removed, the case may be referred for enforcement or removal of that petitioning relative. Additionally, it may be that if a U.S. citizen's background reveals a serious criminal history, the case will be even more closely scrutinized for fraud.
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Where to File the Address Change Notification?
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The USCIS recommends that persons who change their addresses consult the USCIS Website to determine how to have an address changed in the USCIS data systems. As a reminder, all persons who are not U.S. citizens must file an AR-11 within 10 days of any move. The filing of the AR-11 will not update the address for purposes of pending applications or petitions. The particular Service Center must also be contacted, by telephone and by letter, with all pending petition or application numbers, and notified of the address change.