"How Is USCIS Working For You? -- Your Questions and Comments?" - July 29, 2009
1. Processing Differences Between Sister Service Centers–Bi-specialization – Callers noted that discrepancies exist between the processing times at sister service centers suggesting that USCIS provides two levels of customer service for the same filing fee. Particularly, callers noted differences between the Vermont Service Center (VSC) and California Service Center (CSC) on Form I-129F for fiancés and spouses of U.S. citizens. What is USCIS doing to address processing discrepancies between sister service centers?
USCIS Response: Both VSC and CSC report the same processing time (5 months) for Form I-129F.
2. Background & Security Clearance Delays – A caller noted that he encountered a long processing delay in receiving his H-1B approval due to background/security checks. He asked if he would encounter similar delays in his adjustment of status filing. Please discuss the relationship, if any, between the security clearances required in nonimmigrant and immigrant cases.
USCIS Response: USCIS completes relevant background checks for both nonimmigrant and immigrant cases. If initial submission of biographical information or fingerprints and/or a review of the administrative record reveal an issue that may potentially impact an applicant's eligibility for the requested immigration benefit, further inquiry is necessary and the adjudication of the application may take longer than usual.
3. Forwarding Misfiled Petitions & Applications – A caller expressed dissatisfaction over alleged inconsistencies in filings sent to the wrong locations. In some cases, USCIS returns the filing to the customer with direction to file it at another location and in other cases the agency transfers them internally. The caller suggested that an internal transfer policy should be considered where the retention or loss of the original receipt date could determine substantive rights. Please explain USCIS’ policy on misfiled petitions and applications.
USCIS Response: When USCIS changes a filing location we will provide a grace period and transfer any cases that are filed at the previous location during that time. Otherwise, we will reject any applications improperly filed. We continue to transition to receiving the majority of our applications at lockbox locations. This will help to ensure consistency in the process and reduce the changes to filing locations.
4. Civil Surgeons & Medical Exams – A caller described where USCIS sent a Request for Evidence (RFE) for new physical examination documents because the form was signed by a physician who supposedly was not listed on the USCIS Civil Surgeon list. The physician was on the list. Another caller inquired about training and the policy/procedure for updating civil surgeons. A third caller expressed confusion and concern with a USCIS request that she obtain a new physical examination as part of her adjustment of status case despite already submitting a physical examination overseas in obtaining a K-Visa. Does USCIS have a point of contact to answer questions on civil surgeons? How are civil surgeons updated on changes in the law or process that may affect immigration related medical exams and forms processing?
USCIS Response: USCIS does not have a designated point of contact for answering customer questions regarding civil surgeons. Customers who have a question about what they are required to submit or where to find a civil surgeon are encouraged to visit our website or call our National Customer Service Center (NCSC) at 1-800-375-5283.
The Center for Disease Control (CDC) provides guidance for civil surgeons to follow in conducting medical examinations. For more information visit the CDC website at: http://www.cdc.gov/ncidod/dq/civil.htm.
USCIS also provides updated guidance, as appropriate, on its own website, www.uscis.gov. The Form I-693 page, for example, has “related links” addressing several issues related to the medical examination of aliens.
5. InfoPass – A caller inquired about his derivative adjustment of status case which became separated from the principal applicant approved case. The caller noted that he unsuccessfully attempted to resolve the matter by contacting the National Customer Service Center several times. When he made an InfoPass appointment, he was questioned why he was checking the case at the local office as his file was at the Texas Service Center. The caller noted that InfoPass does not provide suggestions that another approach is more appropriate. How should a customer proceed in such circumstances?
USCIS Response: A derivative adjustment of status case may be separated from the principal application for several reasons including:
The Immigration Services Officers (ISO) determines the principal applicant is approvable; however, the derivative’s application contains deficiencies (e.g. initial or secondary evidence missing, improper signatures, unacceptable Form I-693, etc.) and requires a Request for Evidence (RFE).
A spouse or child files as “following-to-join,” meaning their I-485 application is filed after the principal applicant’s I-485. Once an applicant is identified as a derivative, they should be joined with the pending principal applicant’s file to complete processing together. However, a principal applicant may already be adjusted before the derivatives’ applications are received, or the family’s files are joined together, or the derivative’s security checks are cleared.
The principal applicant is approvable, but the derivative’s security and background checks have not yet posted or have expired and need to be refreshed or rescheduled. Database sweeps at different stages and the “pre-adjudicate” process on visa-regressed filings seek to identify missing or expired security and background checks to prepare cases in advance of adjudication; however, some are not detected until the ISO reviews the file.
A child who turned 14 while his or her application was still pending, especially if their 14th birthday falls close to, or during the process of, the final decision, may also not be adjudicated at the same time as the principal applicant. This is because USCIS must initiate background and security checks when a person reaches the age of 14.
Regarding Employment-Based I-485 applications, an ISO may determine the principal applicant is approvable, but a review of the derivative’s I-485 determines they are not eligible for a waiver of the adjustment of status interview. In such instances, the principal applicant and any derivatives not requiring interview are approved and the derivative’s case will be relocated to a field office for an interview and completion.
A principal applicant is approved during a month in which visas are immediately available, but the derivative’s application cannot be immediately approved due to one of the reasons stated above. Then when USCIS has the information necessary to make a decision, visa numbers are no longer available. The derivative must then be pre-adjudicated to await a visa.
If a customer is not satisfied with the assistance they have received from the customer service representative at the NCSC or the ISO at the local office, he or she should ask to speak with a supervisor.
6. Notices to Appear – A caller suggested that USCIS does not appear to be acting consistently when it issues Notices to Appear (NTAs) where the denial of the benefit sought leaves the applicant without status. Can USCIS please describe what factors guide the agency on issuance of NTAs in benefits denial cases?
USCIS Response: USCIS will issue NTAs after a case has been denied where an NTA is prescribed by regulation. This includes, but is not limited to, Form I-751 Petition to Remove Conditions on Residence; Form I-829, Petition by Entrepreneur to Removal Conditions; and Form I-817, Application for Family Unity Benefits. See 8 CFR 216.3(a) and 8 CFR 236.14(c). USCIS will also issue an NTA after termination of an alien’s refugee status by the District Director. See 8 CFR 207.9.
USCIS has discretion regarding the issuance of an NTA in other cases where an NTA is not required by regulation. USCIS will typically issue an NTA when denying a benefit that leaves the applicant without status unless there are extenuating circumstances such as humanitarian reasons or if the applicant is able to submit a new/different application.
7. FOIA Requests in Removal Proceedings – A caller inquired about USCIS FOIA requests and agency delays in timely responding to FOIA expedite requests made in the context of removal proceedings. Please advise what USCIS policy and practice is regarding the expediting of FOIA requests filed in connection with removal proceedings.
USCIS Response: In 2007, USCIS established a Special FOIA processing track – Track III – for individuals appearing before an Immigration Judge. This was posted in the Federal Register on February 28, 2007, volume 72, number 39.
The Notice established the guidelines for submission of FOIA requests when the individual was appearing before an Immigration Judge. An individual must submit one of the following pieces of evidence in order to qualify for Track III processing:
Form I-862, Notice to Appear, documenting the scheduled date of the individual's hearing before the Immigration Judge
Form I-122, Order to Show Cause, documenting the scheduled date of the individual's hearing before the immigration judge
A written notice of continuation of a scheduled hearing before the Immigration Judge; or
Form I-863, Notice of Referral to Immigration Judge.
USCIS will review the submission and, if the submitted documents meet the requirements, will place the request in the special processing queue. The requester will receive an acknowledgement letter from USCIS granting access under Track III. If the documents do not meet the criteria, the requester will receive an acknowledgement letter denying access to Track III, and the request will be placed in either Track I (routine requests) or Track II (more complex, multi-document requests).
A request for access under Track III will be denied if the documents do not show a specific date to appear before the Immigration Judge. For example, if the Notice to Appear is notated with "At a date and time to be set in the future," the request for Track III processing will be denied. Also, please note that Track III ONLY relates to cases before an Immigration Judge.