OI 245.2 Processing.

(a) General. Upon receipt, an application filed in person shall be reviewed to determine whether it has been properly filed (signed by applicant, correct fee submitted, and visa available), whether it is complete, and whether prima facie eligibility has been established. If an applicant is subject to the provisions of section 212(e), the applicant shall not be considered prima facie eligible for adjustment unless a letter or other evidence of approval of the two-year foreign residence requirement is presented . If prima facie eligibility is not established, the application shall be rejected. If prima-facie eligibility is established, the applicant shall be interviewed on the same day, or shall be scheduled for an interview approximately sixty but no more than ninety days later. The applicant shall be furnished notice of the date and of the time of the interview, as well as information regarding the required medical examination (Medical Examination and Immigration Interview, form I-486). An application receiv ed by mail accompanied by the proper fee shall be immediately reviewed upon receipt in Examinations. The interview shall be scheduled and the applicant notified in accordance with the above guidelines. An application submitted without fee or without signature should be returned to the applicant by RA&I (AM 2793.24) and shall not be routed to Examinations. (TM 4/86)

When Examinations determines that an application has not been properly filed because a visa is not available and that availability of a visa cannot be achieved by approval of a visa petition or issuance of a labor certification, the application shall not be returned to the applicant; instead, he/she shall be sent an explanatory notice of rejection with such other advice as may be appropriate and shall be informed that a refund of his/her fee is being considered. See paragraphs (b-1) and (c) for action to be taken when approval of a visa petition or issuance of a labor certification would make a visa available. An application which does not establish prima facie eligibility, such as those filed by crewman or transits without visas, shall be denied.

Form I-468 shall be maintained in each case.

For availability of foreign document see OI 204.2.

(b) Denial for lack of prosecution. Whenever the district director has jurisdiction over an application for status as a permanent resident and a request for additional information, documents or other evidence, or to appear for an interview deemed necessary before adjudication can be made is returned to the Service by the postal authorities as undeliverable after having been sent to the last address furnished by the applicant, the application shall be denied for lack of prosecution if there is no apparent addr ess through which the applicant may possibly be reached with a second request.

(b-1) Visa petition and application for adjustment of status received simultaneously. If a visa petition and Form I-485 are received simultaneously, or a combined visa petition/application for adjustment is received on Form I-130E/I-485H, the Form I-485 or I-485H may be retained and processed only if approval of the visa petition Form I-130, I-140, or I-130E would make a visa immediately available. (See 22 CFR 42.21 concerning documentation of aliens as immediate relatives.). A visa petition Form I-130 or I-14 0 received simultaneously with Form I-485 or a combined petition/application filed on Form I-130E/I-485H shall not be adjudicated separately but shall be adjudicated concurrently at the I-485/I-485H interview. If a visa petition has not previously been approved, and the application for adjustment is submitted unaccompanied by a visa petition which would confer upon the applicant a classification for which he/she appears prima facie eligible and which would make a visa immediately available the Form I-485 s hall be returned to the applicant and he/she shall be informed concerning his/her eligibility to file Form I-485 if a prima facie approvable petition is filed with the Form I-485. If a prima facie approvable petition is filed with the returned Form I-485, the petition and application will then be processed in accordance with OI 245.2(a)

(b-2) A visa petition may be adjudicated by a trial attorney if related to an initial or renewed section 245 application made after an order to show cause has been served.

(c) Labor Department Certification in section 345 cases.

(1) Nonpreference applicants. Form I-485 and supporting documents shall be returned with appropriate instructions to a nonpreference applicant who is subject to the certification requirement of section 212(a)(14) if he/she has failed to submit the Statement of Qualifications of Alien form, or that form accompanied by Job offer for Alien Employment form and Job offer for Alien Employment form bearing the labor certification, he/she shall be informed that if the Department of Labor denies the application for cer tification he she should resubmit his /her Form I-485 with advice to that effect, so that consideration may be given to a refund of the filing fee.

The procedure described in the preceding paragraph shall not be followed when the nonpreference applicant submits with his/her application a copy of the notice from the Employment and Training Administration or from a United States consular office indicating that a labor certification has been issued and sent to or received by the consular of office. In such a case, as part of the initial processing if the applicant appears otherwise primafacie eligible for adjustment, a request shall be sent to the co nsular office for prompt transmittal of the certification for use in connection with the application for adjustment.

Form I-520A may be used to obtain an advisory opinion of the applicant's occupational qualifications from the employment and Training Administrations from the Employment and Training Administration when an occupational status in Schedule A is being claimed and when such opinion is deemed essential. When Form I-520A is forwarded to the Employment and Training Ad,ministration, it shall be accompanied by Statement of Qualifications of Alien and Job Offer for Alien Employment forms and supporting documents . Form I-520B shall be forwarded simultaneously to the applicant.

(2) Validity of labor certification. Labor certifications are valid indefinitely unless invalidated by the Service or an American consular officer upon a finding of fraud or misrepresentation of a material fact involving the application for the labor certification.

In a third or sixth preference or a nonpreference case, when adjustment of status will be granted more than 16 months after actual issuance of the certification, Form I-71 shall be used to confirm the employer's intention to employ or continue employment of the alien.

In a nonpreference, third or sixth preference case supported by an individual labor certification which did not require a job offer, if the Statement of Qualifications of Alien form, shall be forwarded to the Employment and Training Administration, requesting return of the enclosure with advice as to whether the individual labor certification is considered valid at the place where the alien is presently residing. Form I-520B shall not be sent to the applicant, petitioner or attorney in such a case.

(d) Agency checks - Form G-325A.

(1) General. FBI, CIA and consular checks on Form G-325A, in other than Hong Kong, Taiwan and India job offer cased (see (OI 105.10), shall be requested promptly during initial processing of each adjustment application. An FBI identification check shall not be requested for an applicant who is more than 79 years of age. An applicant who has not reached his/her 14th birthday is not subject to these checks. In Hong Kong, Taiwan and India job-offer cases, the Service office will defer action on the application until the results of the investigation required by O.I. 245.3(b) have been received from the investigating INS office together with Forms G-325A, the nonimmigrant visa application (OF-156) and any comments provided by the consular officer. (See O>I. 105.10(b))

In cases involving adjustment applications under the provisions of the Act of October 28, 1977, CIA 101 or 104 of that Act who were not processed through a refugee center and paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act.

In cases involving adjustment applications under the provisions of the Cuban Adjustment Act of 1966, CIA checks shall be made only for applicants who were not processed for CIA checks by the Service during the 1980 Mariel boatlift and subsequently paroled into the United States.

In a section 245 case in which the applicant is an immediate relative or a special immigrant, or in which the Visa Office Bulletin indicates a visa number is available to the applicant, in a section 1 Cuban case (Act of November 2, 1966) and in a section 13 case (Act of September 11, 1957), sheet 4 of Form G-325A ( See OI 105,10) shall be forwarded to the consular post at which the subject's entry visa was issued. In Indochinese refugees adjustment cases, consular checks were made only for an applicant under section 101 and 104 of the Act of October 28, 1977, who was not processed through a refugee center and paroled into the United States under section 212(d)(5) of the IMmigration and Nationality Act, and who obtained a nonimmigrant visa from a consular post in a country other than Vietnam, laos, or Cambodia.

Upon receipt of the Form G-325A, the consular office will immediately check its internal records and other readily available sources. If the consular office has reason to believe that a ground of ineligibility may exist or that adverse information may be developed from any source, a cable to that effect will be promptly dispatched to the Service office from which the Form G-325A was received, Upon receipt of such a cable, the Service office will defer acting on the application until the Form G-325A, is returned by the consular office with the adverse information or evidence, if any.

If, upon receipt of Form G-325A, a consular office determine that there is no reason to believe that a ground of ineligibility may exist or that adverse information may be developed from any source, the Form G-325A request is not received within 60 days from the date of the request, the check shall be considered to have been made with negative results and the application processed on that basis. The foregoing instructions are not applicable to G-325A requests addressed to the Director, Visa Office, Dep artment of State. That office will continue to return sheet 4 to the originating Service office after the requested check has been made.

(2) Request for consular check of criminal or other records. When a Service office desires that other than a normal check be made, e.g., that criminal or other records be checked, the request shall be clearly stated on the Form G-325A and whatever supplementary information or documentation the consulate will require to comply with the request shall be forwarded attached to the Form G-325A. For example, if a special request is made in the case of an applicant who has resided in Germany, Italy or Greece, Form I -484 executed by the applicant shall be attached to the Form G-325A.

(3) Consular posts. The list of visa issuing posts contained in Exhibits I and II of Appendix B/C/E to Vol 9 - Visas of the Foreign Affairs Manual shall be used to determine the Consular Office having jurisdiction.

(4) Parolees. When the file reflects that the applicant arrived in the United States as a parolee pursuant to advance authorization of parole issued while the alien was abroad and that Form I-512 was issued in accordance with OI 212.5(c) only after a check had been made with the American consul for any adverse information, Form G-325A shall not be submitted to the consul. In such a case, a memorandum signed by the adjudicator shall be place in the file stating the reason why Form G- 325A was not submitted to the consul.

(5) Mailing of Form G-325A. Form G-325A being sent to an embassy or consulate in Canada or Mexico shall be sent directly by airmail. Form G-325A being sent to the embassy at Manila shall be for warded by airmail in an envelope addressed to the Consular Section, American Embassy, APO San Francisco, California 96528. Those forms going to embassies and consulates in other countries shall be sent , also by airmail, to the Diplomatic Pouch room, Department of State, Washington, D. C. 20520, for forwarding in acco rdance with the procedure in item 3b, AM 279993.13.

(6) Returned applications. When examination of Form I-485 indicates that it has been prepared properly and that the beneficiary is prima facie eligible and a visa petition has been approved or is not required but the application must be returned for additional documentation or information, the Form I-485 shall be returned to the applicant However, Form G-325A shall be executed and forwarded. The application should be counted statistically as "returned." No other processing shall be instituted in such cases un til the applicant resubmits Form I-485 in an acceptable form with the requested documents or information.

(e) Foreign officials. The use of Form I-88 is no longer necessary in connection with the application of an A, G, or NATO nonimmigrant for adjustment under section 245 of the Act. In the case of an applicant for adjustment under section 13, Act of September 11, 1957, however, Form I-88 must be prepared and sent to the Department of State to ascertain whether it has any objection to the granting of the alien's application for adjustment under that section. The Department of State response will also furnish information concerning the applicant's classification and employment as a government official and the duration of that employment.

(f) Applicant under deportation proceedings.

If the initial or renewed application under the provisions of the Act of October 28, 1977 is made after an order to show cause has been served, the decision thereon will be made by an immigration judge, or the Board of Immigration Appeals if the immigration judge's order is appealed. In an application for adjustment over which the immigration judge has jurisdiction, after the alien course of the deportation proceeding and any required investigation has been completed, if the general attorney finds that the the alien is not statutorily ineligible and that the facts do not warrant disapproval as a matter of discretion he/she shall so inform the immigration judge. The general attorney shall assure that all prerequisites for granting permanent resident status as outlined in OI 245.5(c) have been met, and shall so inform the immigration judge. An applicant who has filed or renewed his/her application before an immigration judge shall not be interviewed by Examinations concerning the application, and the di strict director's signature shall not be entered on Form I-181 in such case. (TM 12/86

If the application is approved, the immigration judge will issue a written form order reflecting the grant of permanent resident status at the conclusion of the hearing. This form order will then become part of the record of proceeding UPon receipt of this written order, Service personnel will complete the processing of Form I-181. The "DD" line in the action block shall be filled in with the notation "by order of immigration judge (name)". The "district" line of the action block shall be filled in w ith the district office where the judge's order was given. After these steps are completed, the I-181 should be reviewed by an immigration officer and, if correctly filled out, stamped in the right half of the action block with the District Director's approval stamp, indicating the date on which the Form I-181 was processed. The immigration officer will also sign the "Recommended by" block at this time, indicating the information on the form has been verified. Once these steps are completed, Forms I-18 1 and I-89 are to be forwarded to the IMDAC facility for processing.