Important Updates at the July 2011 USCIS Business Representatives Conferences

On July 12 and 13, attorneys from our firm attended a "Business Representatives Conference" with U.S. Citizenship and Immigration Services ("USCIS") officials at the Texas Service Center ("TSC") and toured the Dallas Lockbox Facility. The conference allowed our attorneys to discuss a range of issues related to employment-based I-140 petitions and I-485 applications with representatives from USCIS Service Center Operations ("SCOPS"), Nebraska Service Center ("NSC") and TSC.

We provide a brief summary of new information provided by USCIS officials at the meeting:

TSC Acting Director Kristi Barrows opened the meeting by acknowledging the slow processing times at TSC that have frustrated many petitioners and beneficiaries. She explained the slowdown began last fall when TSC focused efforts to process pending I-485 applications with visa numbers that had become available (mainly for the EB-2 category as a result of the forward progress in the visa bulletin that allowed thousands of pending I-485 applications to become current). As TSC focused more resources to reduce the I-485 backlog, the processing times for I-140 petitions began to increase from an average of 4 months during the spring and summer of 2010 to more than 9 months this summer.

The I-140 processing delay was then exacerbated in late 2010 and early 2011 by the introduction of the two-step Kazarian analysis for adjudication of EB-1A extraordinary ability, EB-1B outstanding researcher/professor, and EB-2 exceptional ability petitions. TSC devoted many hours to training Immigration Service Officers (ISOs) for these types of cases. Unfortunately, TSC came to realize the general guidance for Kazarian analysis and related template Request for Evidence caused misunderstanding and confusion for some ISOs who were unable to apply the analysis properly. Although Acting Director Barrows did not discuss the RFE rate, we believe the confusion stemming from the Kazarian analysis may explain why there appeared to have been a higher standard applied by some ISOs and an increase in RFEs and denials for EB-1A and EB-1B petitions during the past year.

TSC has implemented a number of measures to help reduce the processing time and to address the problems arising from the Kazarian analysis:

1) ISOs are more specialized. Previously, ISOs were given general immigration training and expected to adjudicate a variety of I-140 petitions and I-485 applications. This caused problems as some ISOs were confused by the Kazarian analysis, were uncomfortable adjudicating certain type of petitions, and were better suited to adjudicate other types of cases. During the past couple of months, TSC has instituted a system to have ISOs that are more specialized, with each ISO adjudicating specific subtypes of I-140s (for example, some adjudicators will focus only on EB-1A extraordinary ability petitions). As ISOs focus on a specific type of I-140 petition, they will become more familiar with the legal requirements and analysis as well as the types of evidence that will meet the criteria. This means ISOs will adjudicate cases more effectively and efficiently.

2) ISOs are spending fewer hours reviewing cases. For example, average time spent on adjudication of EB-1A extraordinary ability petitions have reduced from 5 hours to 3 hours.

3) ISOs are working more overtime hours to process these cases.

4) TSC is transferring some cases to the NSC to help with the processing and to reduce the workload. At the same time, TSC and NSC have joint initiatives to share training materials and strive for consistency in RFE and denial language.

With all these measures in place, Acting Director Barrows hopes TSC would meet its 4-month I-140 processing goal by end of this fiscal year (September 30, 2011).

Changes in I-140 petition ("I-140") processing have resulted in changes to I-485 application ("I-485") processing. TSC no longer engages in concurrent adjudication of I-140 and I-485. In previous years, TSC would have the same ISO adjudicate both I-140 and I-485 if the I-485 was filed while the I-140 was pending, often resulting in faster processing for both I-140 and I-485. As ISOs are more specialized, the I-485 is no longer adjudicated by the same ISO who adjudicated the I-140. TSC (like NSC) now engages in sequential adjudication where the I-140 is adjudicated first by one ISO and after the I-140 is approved, the I-485 is adjudicated by a different ISO. I-485s may still be concurrently filed or interfiled, and biometrics (fingerprinting) and background checks can be completed while the I-140 is pending, so this may still reduce a few months of processing time for I-485 applications on the backend; however, it would not help to speed up I-140 processing. This may be an important consideration for clients who have the option of filing I-485 concurrently.

To help TSC process I-140s and I-485s efficiently and effectively, Community Engagement Officer Jack Jaggers provided some filing tips.

1) For many years, TSC has warned against excessive documentation. Mr. Jaggers repeated this warning and reiterated more is not better. The quality and organization of the documents are more important than the quantity. As TSC is making efforts to reduce time spent on I-140s, ISOs will have less time to review petition packages. There are also anecdotal reports that some ISOs would put aside petitions that are too thick or disorganized. Thus, it is best if the documentary evidence is clear, concise, and straightforward.

2) All petitions should have an index of the evidence that accompanies a petition cover letter. It is very important that the petition cover letter be a brief summary of the evidence and that it clearly explains how the beneficiary is impacting the field of endeavor. Mr. Jaggers stated the petition cover letter should not be too technical. Rather, the letter should provide legal analysis in plain language and draw a direct link between the evidence and how it serves to meet the legal criteria for the petition.

3) With respect to the supporting evidence, USCIS officials made clear the beneficiary's impact on the field is very important, especially for EB-1A extraordinary ability petitions. For example, authorship of a peer-reviewed paper should show the paper was published in a journal with a high impact factor and has been well-cited. Such evidence helps to support the impact of the beneficiary's work on the field. Authorship of a peer-reviewed paper alone is not as convincing if it is in a journal with low impact factor and/or it has not received many citations. Another example is a patent for the beneficiary's work. Patents should be accompanied by evidence that the patented technology/invention has been used, licensed, or commercialized by others in the field or industry. A patent no one else is using cannot show the impact of the beneficiary's work. Finally, the evidence should be organized neatly and divided with color sheets of paper corresponding to the proper number in the index of exhibits.

4) For I-485s, applicants are encouraged to go to the biometric (fingerprinting) appointments as originally scheduled. Rescheduling appointments can result in processing delays. In addition biometrics can only be rescheduled 30 days out, so missing multiple appointments can result in denial of the application.

5) Finally, USCIS officials ask that I-485 applicants wait 30 days after the visa number becomes available to submit service inquiry. This will allow USCIS adequate time to search for cases and follow up/approve those that become current.

Following the meeting, we are optimistic the processing times and the quality of adjudications at TSC will improve in the next few months. We understand clients have been frustrated with the significant delay and increasing number of RFEs during the past year. It appears TSC officials understand and appreciate these concerns and have made great efforts to address these issues.