Attorney Murthy's Observations on VSC Procedures
Posted Dec 27, 1999
On September 27, 1999, I had the opportunity to visit the Vermont Service Center (VSC) and meet with the Director of VSC, Paul Novak, Jr. and several of his senior officers. I chose to join the group of Dan Renaud, the INS Supervisor in charge of the Business Product Line ("BPL") of VSC.
I have summarized my observations of the meeting and discussions with him in the form of questions and answers :
1) How can a company request the Vermont Service Center ("VSC") to process all of its petitions across the country, i.e., maybe it wants VSC to have sole jurisdiction over all company cases?
Answer. A company requesting sole jurisdiction of VSC is required to have a major operational office in the VSC jurisdiction, like the hiring office or the immigration section of the company or the company headquarters, within VSC jurisdiction.
At present, VSC has over 300 companies which have requested the VSC to be the sole jurisdiction for processing all of their immigration related petitions. This workload has posed substantial personnel problems for VSC since most of the other Service Centers tend to have about 30 companies each!
The method of requesting sole jurisdiction for companies is to address a letter to the Director of VSC, Paul Novak, Jr., requesting sole jurisdiction. There is no special form or filing fee required. In its discretion, VSC may decide to discontinue accepting sole jurisdiction cases for companies, if they find that they are not able to continue to provide quality service.
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2) How can attorneys ensure that our packages are not stuck in the mailroom for a long time?
Answer. It may be worth addressing the package to the appropriate product line, for example, send I-129 Petitions and I-140 Petitions to the "Business Product Line" which can be helpful for mailroom sorting. The other product lines are "Family Product Line" and "Adjustment Product Line."
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3) How do we notify for changes of address to ensure that the information gets into the file promptly? These delays result in too much confusion.
Answer. Send the change of address to the appropriate product line as set forth in answer 2 above. Mention in bold face "Change of Address" on the letter and on the envelope, if possible, since changes of address are supposed to be given top priority by VSC. In spite of reminders and telephone calls, if the change of address is not noted on the file, attorneys can contact the AILA liaison to ensure that correspondence is sent to the correct address for the client.
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4) Where does the I-485 have to be filed - in the jurisdiction where the employee/beneficiary is residing or where the I-140 was approved, in employment-based cases?
Answer. Although the traditional rule has been that the I-485 has to be filed where the beneficiary / employee is working in the employment context, VSC will accept an I-485 application, if it has the I-140 approval at VSC.
Editor's Note: The other Service Centers are doing likewise.
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5) What is the present staff of the Business Product Line?
Answer. At present, the business product line or BPL has seven (7) supervisors, forty-one (41) adjudicators, twelve (12) clerks and thirty (30) immigration information officers (IIOs).
Dan Renaud is the Product Line Manager or Supervisor of the Business Product Line at VSC.
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6) How can we make sure that we are able to get through to VSC, especially because the telephone lines seem to be constantly busy and when not busy, it is usually after hours?
Answer. Randy, the Senior IIO Officer suggested that we try and call a minute before 8:00 a.m. because generally the mornings tend to be much less busy than the afternoons. That is the only tip that they were willing to give us!
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7) Can you provide us some estimates of the National Interest Waiver (NIW) approval rate at VSC?
Answer. We believe that we have about a thirty to forty percent approval rate for NIW petitions! The VSC found that most of the petitions for NIW were "surprisingly very good." We generally do not take into consideration the time left on the H-1B. The fact that the labor certification process takes too long is obviously not a good enough reason to get an NIW approval! The background and credentials of the applicant being "extra special" is crucial for NIW approvals, according to Dan.
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8) What is the procedure for an expedite request?
The general reasons for an expedite tend to be as follows:
a) Emergent reasons;
b) Financial loss to the company which has to be in realistic terms, not vague terms;
c) INS error;
d) Humanitarian reasons.
Answer. The question that VSC often asks is why could the petition not have been filed earlier - if the attorney was in hospital or was otherwise seriously ill, VSC will definitely take that into consideration. In most cases VSC tends not to expedite cases because everyone should be given the same opportunity to have their cases approved with a quick turn-around time. An expedite request should be addressed to Tim Collins at the Business Product Line.
Editor's Note : Dan agreed with us that when there is a deportation case or when a case is before a judge if the attorney or the foreign national calls or requests INS for an expedite, it is less likely to be given importance but if the INS trial attorney asks for an expedite because the foreign national is in proceedings, VSC is likely to give that greater weight!
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9) Age-out cases are always given an expedite in the I-485 department. The question is, we often find that family members' applications tend to be separated from that of the principal H-1B, I-140 or I-485 beneficiary. How do we avoid that?
Answer. On Form I-539s and Form I-824s, it is very important to mention both the company name and the name of the principal beneficiary so that the principal's application and those of all dependent family members are maintained together or are otherwise merged in the computer, so that the approvals can be issued simultaneously.
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10) When does the INS tend to revoke previously approved Petitions?
Answer. When additional information is provided to the Officer, after having issued the approval, or evidence is presented based on other cases filed by the same employer, VSC will make a decision, to revoke the Petition and issue a Notice of Intent to Revoke. One example, we found a pattern of practice of fraud when twenty-one companies had the same apartment number as their mailing address! Obviously, there was something fraudulent about that! The U.S. Consulate in Chennai, India reviews credentials of applicants and the financial viability of the companies and the prior experience of H-1B beneficiaries to verify their authenticity. If VSC obtains information about the fraudulent experience or educational qualifications of the beneficiary, we are likely to revoke the prior approval.
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11) We often find that in the I-140 Petition, the ability of an employer to pay, is usually one of the main considerations in denying the I-140 Petition. Can you provide us some guidance?
Answer. The examiners believe that the financial ability of a company to pay the stated wage on the labor certification form or the I-140 is indeed a complex issue since most of the examiners do not have any background in accounting. Factors that they will consider favorably are: if a company has paid the alien's salary for several years, then that is helpful to show that the company has the ability to pay the salary.
The company can present to the examiner the depreciation chart and explain the one-time equipment purchase in the prior year's tax returns to show that the loss on the company's tax return is not a real financial loss but merely a one-time expenditure.
Proof of a line of credit which is available to the company can be helpful to show that the company can pay the salary at or above the prevailing wage by using its line of credit.
The best document is the audited financial statement, but VSC will be satisfied with a certified financial statement, or even a financial statement in many cases.
If we find that RIR or I-140 petitions are being denied based on the financial ability of the company to pay the salary of the beneficiary, VSC suggested that attorneys call the IIO (defined above) or the AILA liaison to rectify the situation.
Ability to pay is an issue for a start-up company but the main issue for the INS is the viability of the job offer.
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12) Please provide us an update on the green card production facilities.
Answer. There are about ten thousand cards (10,000) produced each day. At present, there are four machines at the INS as follows: California Service Center, Texas Service Center, Kentucky Card Facility, and Vermont Service Center.
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Editor's Note : On that note, we concluded our meeting with Dan, the Supervisor of the Business Product Line at Vermont Service Center. The Law Office of Sheela Murthy is pleased to be able to share this information with you to better understand how the Service Centers work.
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