NTA Issuance Policy, October Visa Bulletin, PERM, ITIN, H-1B, and DHS Electronic Information Systems.

Alan Lee, Esq.

This article will explore various topical areas of immigration which may be of interest to readers dependent upon their fields of focus or cases.

1. NTA issuance as per U.S.C.I.S. policy memorandum of November 7, 2011.

This is of interest to anyone applying for benefits with U.S.C.I.S. as the question is what the agency will do if it denies the application. DREAMERS are especially concerned as many are contemplating the merits of filing for DACA (Deferred Action for Childhood Arrivals). Current NTA (Notice To Appear before the immigration court) policy is as follows:

  • National security cases will be guided by the Fraud Detection and National Security Directorate (FDNS).
  • NTA issuance is required for terminations of conditional residence status and denied I-751s, I-829s, termination of refugee status by District Director, NACARA 202 and HRIFA adjustment denials, asylum referrals/termination of asylum or withholding of removal or deportation/positive credible fear findings (negative findings not automatically entitled), and NACARA 203 cases where suspension of deportation/cancellation of removal are not granted. U.S.C.I.S. is not required to but will issue NTAs in fraud cases with a statement of findings (SOF) substantiating fraud. Criminal cases and NSEERS violator cases will be referred to ICE for decision on an NTA issuance. Criminal cases are divided into the egregious and non-egregious and U.S.C.I.S. will pend and refer egregious cases to ICE, while it will complete the adjudication and refer the case to ICE if non-egregious. Here ICE will decide if and how it will institute removal proceedings and whether it will detain the alien and U.S.C.I.S. will not issue an NTA if ICE declines to issue. For N-400 naturalization cases mainly involving aggravated felonies prior to November 29, 1990, or applicants convicted of deportable offenses after obtaining permanent residence status that did not fall within the good moral character period, or where the applicant was inadmissible at the time of adjustment or admission to the United States, the ISO (Immigration Services Officer) will make a recommendation on whether to issue the NTA, and the case is forwarded to an N-400 NTA review panel which consists of a U.S.C.I.S. supervisor, U.S.C.I.S. attorney, District representative, and an ICE attorney (invited).
  • Other than these, an NTA is not to be issued except through written request by aliens or if U.S.C.I.S. initiated, after concurrence from regional or center directors, who are to consult with ICE before issuing an NTA.

2. The visa chart for October shows very limited advances.

Family based cases: For all categories, the forward movement was less than one month, and for F-2B adult sons and daughters of permanent residents, there was no movement at all.

Employment based cases: The surprises were here. Although EB-1 (Priority workers) remained current as expected, EB-2 (advanced degree holders or persons of exceptional ability) for most countries only opened the fiscal year at January 1, 2012 for most countries, July 15, 2007 for China born, and September 1, 2004 for India born. You may recall that before the category backlogged in May 2012, EB-2 was current for most of the world and up to May 1, 2010 for both China and India born. EB-3 (skilled workers or professionals) for most countries was at October 22, 2006, up three weeks; China born moved from December 15, 2005, to February 8, 2006, and India moved one week to October 15, 2002. The quota for religious workers who are not members of the clergy became unavailable along with EB-5 immigrant investor pilot program cases as Congress had not renewed either program as of date of visa bulletin issuance. Both categories would immediately become current with the renewal of the programs. In late breaking news, the House by a vote of 412-3 reauthorized the EB-5 pilot program for three years until September 30, 2015. President Obama is expected to sign the bill as soon as it reaches his desk.

3. PERM processing times.

DOL (Department of Labor) processing times as of September 4, 2012, on labor certification applications were as follows:

  • First reviews - June 2012
  • Audits - January 2012
  • Reconsideration to certifying officer - October 1, 2011
  • Government error - current In general, the times mean that the Department is currently reviewing labor certification applications filed 2-3 months ago; is only now adjudicating cases involving auditing and the sending in of a rebuttal that were first filed 9 months ago; making decisions on denied applications filed 11 months ago in which reconsideration was requested of the certifying officer; and making almost immediate decisions on cases denied due to acknowledged government error.

4. New rules on obtaining ITIN's.

Many undocumented immigrants obtain Individual Taxpayer Identification Numbers (ITIN's) to pay taxes on money earned in the U.S. They are not eligible for Social Security numbers, so the ITIN is the best compromise between them and the U.S. government to allow the payment of taxes while not giving undocumented immigrants some form of legal status. However, IRS's new interim rules as of June 22, 2012, will discourage persons from applying for such. Under the rules, original documents must be mailed to IRS such as passports or other appropriate identification documents and the IRS says it could take up to 60 days to return. IRS will also accept a copy certified by the foreign issuing agency, but some applicants have been advised by home consulates that the consulates will not issue certified copies of passports. The passport is especially relevant here as it is the only stand-alone document which satisfies both requirements to prove foreign status and identity. If not a passport, the applicant must submit certified copies of at least two documents, one to prove foreign status and the other identity. Documents that can be used to prove foreign status are a U.S. visa, foreign military identification card, national ID card, foreign voter's registration card, and birth certificate. Documents to establish identity include a visa issued by the U.S., U.S. or foreign driver's license, U.S. or foreign military I.D. card, national ID card, U.S. state identification card, foreign voter's registration card, or birth certificate. To many foreign nationals, their passport is the most precious document, and the only document that they brought with them to the States. Most would be reluctant to let the passport out of their possession, much less for up to 60 days. IRS should reconsider the rule.

5. H-1B items of interest from California Service Center.

Two items of interest were gleaned from the California Service Center's stakeholder meeting of November 8, 2011:

  • It is permissible to request a change of status from H-1B or L-1 to B-2 if the individual has been laid off and is seeking the change of status for the purpose of seeking a school in which to enroll. Applicants must state the purpose of the requested change of status and U.S.C.I.S. takes into consideration all factors in its discretionary determination. (A change of status to B-2 visitor to gain time to obtain eligibility for another visa status is not that common an application, but perhaps more acceptable in this age of stubborn joblessness and layoffs).
  • On maintenance of status for I-129 RFE's (Request For Evidence), the Center clarified that the standard number of paystubs to show that the applicant has been working for the authorized employer is two. The Center's officers have been instructed to use that figure if requesting paystubs. (If this is the trend, it is positive as RFE's have usually requested W-2's and proof of many more paystubs than two where maintenance of status is at issue).

6. DHS electronic information systems news.

  • Because U.S.C.I.S. implemented the Electronic Immigration System (ELIS) on May 22, 2012 to electronically adjudicate I-539's, CBP (Customs and Border Protection) to maintain consistency has instructed its inspectors at the ports of entry to no longer stamp I-20 forms presented by prospective and returning students seeking admission to the U.S.
  • U.S.C.I.S. has apparently tied in with the Advance Passenger Information System (APIS) and where a person plans an international flight, cancels it, and later applies for immigration benefits that require physical presence at the time of filing such as adjustment of status/extension of non-immigrant status, he/she is being denied. CBP's advice on November 9, 2011, was that a person who does not take a scheduled flight should keep documentation to establish physical presence in the U.S.
  • CBP announced on August 7, 2012, that it will automate the I-94 from paper form to electronic. The actual process has not been clearly communicated to the public and a paper I-94 may or may not still be issued at various points of entry while the electronic I-94 record is being generated. More on this at a later date.

This article © 2012 Alan Lee, Esq.

About The Author

Alan Lee, Esq. 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, and on the New York Super Lawyers list. 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, Muhasha 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, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, 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.

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