1. RFEs on drawn out I-485’s – What do you think about when you receive an electronic notice on U.S.C.I.S.’ online status system saying that the agency is sending your client a request for further evidence (RFE) on a long drawn out I-485 Application to Adjust Status to Permanent Residence? In many cases, the matter could have had prior problems which you thought resolved or the priority date may have backed up so that U.S.C.I.S. could not make a final adjudication. Attorneys and others may in many cases rest a little easier between the time of receiving the electronic notice and the actual detailed physical notice by knowing that the chances are that the client is only being asked to supply a new medical if the case has been pending for over a year. As of June 1, 2014, U.S.C.I.S. limited the validity period for all forms I- 693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to U.S.C.I.S.

2. NVC problems – On backlogs when receiving documents, the NVC (National Visa Center) appears to be improving performance as its stated review period has decreased from 90 days to 30 days. However, our recent experience in using the escalation process and attempting to obtain supervisory resolution of a case received by NVC in mid-2014 (without any further action being taken on it) has been disappointing despite constant communication with the NVC and promises to escalate to a supervisor on at least 3 separate occasions. Another NVC problem involves people trying to access the DS-260, DS-261 (selecting a new agent), or paying the immigrant visa processing fees.

· DS 260 (Immigration Visa Application Form) – NVC now advises that for people who get an error message, the programming fix may take up to 10 days. VO (Visa Office) suggests waiting 10 days and then trying again to complete the DS-260 online. After 10 days, if unsuccessful, call NVC (603-334-0888 and press option “2”) and customer service representatives will provide information to software programmers for case specific assistance.

· DS 261 – call the same number.

· IV (Immigrant Visa)/AOS (Affidavit of Support) fees – if unable to pay but people have already received a fee bill or invoice from NVC, NVC advises that they can pay by mail, and include a copy of the invoices when they mail the payment - send cashier’s check or money order (no personal checks); write the NVC case number on the memo line; mail with the invoices to: NVC Fee Processing Center, PO Box 790136, St. Louis, MO 63179-0136. If they have not yet received the fee bill or invoice from NVC, call the same number above with option 2 and customer service representatives can mail the fee bill to them.

3. July visa bulletin good for China-born – The July visa chart put out by the Visa Office showed advances in all categories worldwide in both family and employment based preferences (with the exceptions of China, India, and the Philippines). The worldwide family based preferences advanced approximately one month across the board to 10/1/07 in the F-1 category for unmarried sons and daughters over the age of 21 of U. S. citizens; 11/8/13 for unmarried children under the age of 21 of lawful permanent residents; 10/15/08 for the unmarried sons and daughters over the age of 21 of lawful permanent residents; 3/15/04 for the married sons and daughters of U. S. citizens; and 10/22/02 for the siblings of U. S. citizens. The employment based categories were all current worldwide with the exception of the EB-3 skilled worker/professional and EB-3W unskilled worker categories which advanced 1 ½ months to 4/1/15. China-born benefited in having a four-month jump in the EB-2 category for exceptional workers/advanced degree holders and a similar four-month jump in the EB-5 immigrant investor preference although EB-3 and EB-3W categories remained at 9/1/11 and 1/1/06 respectively. India-born saw the EB-2 category remain the same at 10/1/08, and both EB-3 and EB-3W advance one week to 2/1/04 respectively. Philippines-born saw both the EB-3 and EB-3W categories go from 1/1/05 to “U” (Unavailable). They will likely remain unavailable until the beginning of the new fiscal year in October.

4. PERM case without employer signature on audit response – In the PERM case of Matter of New York City Department of Education, 2012-PER-02553/02632/02658(BALCA 5/14/15), the Board of Alien Labor Certification Appeals held that where the employer sent in a typed name on the recruitment report instead of actually signing it, he violated 20 CFR §656.17(g)(1) that “The employer must prepare a recruitment report signed by the employer or the employer’s representative….” The case is interesting because BALCA did not reject the employer’s argument that the handwritten signature was not required by regulation and that an electronic signature could comply, but pointed out that such a signature would consist of a typed name preceded by the customary “/s/” which would signify a legal electronic signature. That may be important as a way to satisfactorily comply with the signature requirement for cases in which the employer’s actual signature is not available and the deadline is pressing.

5. DHS civil immigration enforcement priorities card – It is our understanding that DHS officers have been issued a card with 2 sides defining the type of individuals upon whom they should concentrate their enforcement efforts. There are 3 levels of enforcement priority and they track the new PEP (Priority Enforcement Program) which has been in effect since January 5, 2015. The card encourages officers to contact their supervisors or Office of the Chief Counsel with questions concerning cases. It lists the 3 priorities and the persons covered under them:

Priority 1 (threats to national security, border security, and public safety)

a. Aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;

b. Aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;

c. Aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 521(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;

d. Aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state of local offense for which an essential element was the alien’s immigration status; and

e. Aliens convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the INA at the time of the conviction.

Priority 2 (misdemeanants and new immigration violators)

a. Aliens convicted of 3 or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element was the alien’s immigration status, provided the offenses arise out of 3 separate incidents;

b. Aliens convicted of a “significant misdemeanor,” which for these purposes is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);

c. Aliens apprehended anywhere in the U.S. after unlawfully entering or re-entering the U.S. and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014; and

d. Aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.

Priority 3 (other immigration violations)

· Aliens who have been issued a final order of removal on or after January 1, 2014.

Hopefully DHS officers will take the cards to heart along with the message they bear.

Reprinted with permission.

About The Author

Alan Lee, Esq. Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof (its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004); and his 2015 case, Matter of Leacheng International, Inc., with the AAO set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.