Immigration News You Can Use - To Photo or Not for N-400 Filings? Where Are All the I-601A Cases Going? New Vetting Center for Specific Affirmative Asylum Cases

by Alan Lee, Esq.

  1. To photo or not for applications like N-400 filings not requiring them?

Do you submit photographs to USCIS for applications that do not require them, such as N-400 naturalization applications (only those residing overseas are asked to submit two passport photos with the application)? The answer is not as easy as it seems, as there are pros and cons. Why submit photos which are not asked for? For a lawyer, it may make him/her look less competent in the eyes of a client who reads the form instructions if he/she asks for photographs? It may also slow down processing time in the attorney’s office, as the rest of the materials can be scanned and emailed over. And what of N-400 situations previously when the agency required photos, and then the officer requested another set at the time of interview? In that case, a client would be taking two sets of photos. We recently had a case in which the applicant brought photos to the naturalization interview (not on submission); they were not requested; and yet requested at the swearing-in ceremony at which time the applicant had left the photos at home! USCIS is generally re-using as many of the old biometrics as it can in the interest of reducing the time that its personnel have to spend on biometrics appointments. It is a good stratagem as fingerprints do not change, and has been universally applauded. (It should be remarked that persons not encountered previously by USCIS still have to attend biometrics appointments such as those entering on immigrant visas unless they were subsequently fingerprinted and photographed by USCIS). For waived biometrics appointments, the agency has also been using photographs that it has in the file. In a case last week, the interviewing officer requested photos saying that the ones in the system were too old. Luckily the client had brought photos and did not have to go outside the building, take photos, and then return. USCIS special instructions to form N-400 simply say that based on processing needs, an applicant may need to submit photographs after filing the N-400, and if so, USCIS will send a request along with instructions on how to submit the physical photographs. So do you submit unasked for photos for the filing, or do you carry photos to the interview, or do you not worry about photos at all since they are not requested? We have had other interviews in which the client offered photos which were rejected by the officer as not needed.

  1. Where are all the I-601A cases going?

We have had a number of I-601A provisional unlawful presence waiver cases transferred lately, and wonder whether they are headed to the location provided in the transfer notice, the Potomac Service Center, or if they will be headed ultimately to the new virtual remote HART (Humanitarian, Adjustments, Removing Conditions, and Travel Documents) Service Center that is opening at this time in order to speed up processing as a result of pending litigation. Of special interest to us is that the remote center will concentrate on I-601A’s as well as “bona fide determinations” for U visa applicants (I-918), VAWA petitions (I-360), and asylum reunification petitions (I-730). In an article written by a senior fellow at the American Immigration Council, Dara Lind, “New USCIS Center Is Good News For Some Of Its Worst Backlog Victims”, Immigration Daily, 4/19/23, she said that the Council documented in a recent class-action lawsuit that processing times for I-601A grew sixfold from 2017 to 2022, and that of the two service centers handling the waivers, it is taking three years at one center and 3 ½ in another one to decide 80% of the waivers. Attorneys in the lawsuit estimate that the class of people who have waivers pending for more than 12 months would include at least 70,000 people. In favor of the ultimate destination being HART, it otherwise makes little sense to transfer from the Nebraska Service Center to the Potomac Service Center since both have a current published processing time of 44 months for 80% of the cases.

  1. New vetting center for specific affirmative asylum cases.

In the past, asymmetrical affirmative asylum cases have been filed at service centers and then later at local asylum offices. Now USCIS has created a new vetting center in Atlanta, Georgia, to have one clear address at which these atypical cases can be filed. They are the following cases with USCIS instructions:

  • Loss of Derivative Status After Asylum Approval but Before Adjustment of Status (Nunc Pro Tunc):If you are currently a derivative asylee, but you are unable to adjust status to lawful permanent resident due to a loss of derivative relationship, then you may submit a new Form I-589 and request a grant of asylum nunc pro tunc. In your letter, please provide information about your previous Form I-589 and explain that you are now filing independently as a principal applicant.
  • Loss of Derivative Status After Initial Filing but Before Final Decision:If you withdrew from a principal’s Form I-589 as a dependent, or if you lost derivative status by marriage, divorce, or death of the principal applicant, then you may submit a Form I-589 as a principal applicant. In your letter, please provide information about your previous Form I-589 and explain that you are now filing independently as a principal applicant.
  • Simultaneous Filing as a Principal Applicant and a Derivative Applicant:If you are already listed as a derivative applicant on another pending Form I-589, you may file a Form I-589 as a principal applicant. Also, you and your spouse may file separate Forms I-589 at the same time as principal applicants and list each other as derivative applicants. In your letter, please provide information about any previous Form I-589 and explain that you are now filing independently as a principal applicant.
  • Previously Issued a Final Action by USCIS on a Form I-589:If you previously filed Form I-589 with USCIS, you may be eligible to file a new Form I-589 with USCIS if you have not been placed into immigration court proceedings after USCIS denied or dismissed your Form I-589, including if we dismissed it after you withdrew your Form I-589.
  • Previously in Immigration Court Proceedings: If you have reason to believe we have jurisdiction over your Form I-589 and you were previously in immigration court proceedings, then you may submit a Form I-589.
  • The address of the vetting center is:

Mailing by U.S. Postal Service (USPS):

USCIS Asylum Vetting Center
P.O. Box 57100
Atlanta, GA 30308-0506

Mailing by FedEx, UPS or DHL:

DHS-USCIS Asylum Vetting Center
401 W. Peachtree St. NW, Suite 1000
Atlanta, GA 30308

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2022), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. 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 Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (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.