USCIS Reminds Applicants for Adjustment of Status to Obtain Advance Parole Before Summer Travel Abroad.

USCIS has reminded individuals who have an adjustment of status application for adjustment to permanent residence pending, an application for relief under the NACARA 203 or an asylum application pending, to file Form I-131 Application for Travel Document with USCIS and obtain an Advance Parole before they travel abroad. Advance Parole is permission to re enter the US after traveling abroad in order to continue processing of the adjustment of status application. Aliens who are in the process of adjustment of status can be denied entry into the US and their adjustment application can also be denied in absence of an advance parole. The process of obtaining an Advance Parole may take 90-150 days time, therefore the Advance Parole application must be filed well before the expected date of travel.

The Customs and Border Protection (CBP) bureau of the DHS has recently provided information on how to get I-94 errors corrected. Errors such as misspelled name, incorrect or inverted date-of-birth (DOB), visa classification showing incorrect nonimmigrant visa classification, B-2 visitors stay limited without signed supervisory and recording the visa expiration date in place of the petition expiration date as the authorized period of stay, can be corrected provided that the error was not a deception or fraud on the part of the Alien.

CBP has jurisdiction for correcting such errors made at the port-of-entry. The CBP reviews and issues appropriate documents to correct errors and update the Non-immigrant Information System (NIIS). The mail-in procedure is not available for this service, therefore Aliens should report to the nearest CBP deferred inspection office or port of entry, regardless of where the actual document was issued. For a list of CBP deferred inspection offices for correction of erroneous Form I-94s, please see our website www.avlawoffice.com - H-1B visa - Item No. 7.

Concurrently filed I-140 / I-485 cases pending before the Pilot Project commenced, which are subsequently withdrawn and re-filled will be considered outside of the Pilot Project.

This is also applicable for I-140 EB-2 (non-National Interest Waiver) solo filings filed and pending at CSC before the Pilot Project commenced. These cases will fall outside the pilot project, if they are withdrawn and new concurrent I-140 EB-2 (non-National Interest Waiver)/I-485 cases are filed for the same Employer and Beneficiary.

CSC is focusing on clearing backlogs with regard to both cases, which fall within the Pilot Project and those which fall outside of it. Withdrawing and re-filing of cases will not be conducive to the effort of clearing the backlog.

Recently the USCIS has issued a Memo which provides guidance for acceptance of Applications to Register Permanent Residence or Adjust Status where there is a pending petition for Alien Relative (Form I-130) at a service center.

The Memo states that where it is evident that an applicant for Form I-485 has a pending Form I-130 at a service center, the district office and/or National Benefits Center (NBC) must request for the receipt file from the service center.

The District Office and/or the National Benefits Center may accept an Application for Travel Document (Form I-131) and an Application for Employment Authorization (Form I-765) in conjunction with, or subsequent to, the filing of the Form I-485 and proof of Form I-130 filing. These applications will be processed in the same manner as if they had been received with a Form I-485 and a Form I-130 or approval notice.

Upon receipt of the request for the visa petition, the Service Center, within 15 days shall locate and send the petition to the requesting office via Fed Ex. The Service Center is not required to adjudicate the petition prior to shipment.

This memo provides guidance to adjudicators on when a request for evidence (RFE) is not required or should not be issued.

A recent review of CIS practices revealed that in certain instances adjudicators unnecessarily issue an RFE questioning an employer's ability to pay prior to making a final decision on a petition. It is unclear how this practice evolved, and it has resulted in a process that significantly affects limited CIS resources, increases processing delays, and confuses petitioners and applicants. As part of its backlog reduction initiatives, CIS plans to amend the regulations with respect to the requirement that certain employment-based visa petitioners provide evidence of their ability to pay the proffered wage. In the interim, however, this memorandum provides guidance to adjudicators when making an ability to pay determination.

Any petition filed by or for an employment based immigrant, which requires an offer of employment, must be accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered wage. A petitioner must file a fully completed Form 1-140 along with initial evidence establishing its ability to pay the beneficiary the proffered wage. Required initial evidence, includes copies of: (1) annual reports, (2) federal tax returns, or (3) audited financial statements. The petitioner must submit a copy of at least one of these required documents.

CIS adjudicators should review the file for missing initial evidence. If the record does not contain one of the three required documents (annual report, tax return, or audited financial statement), issue a request for evidence.

An applicant or petitioner must establish eligibility for the requested benefit. If the record is complete with respect to all of the required initial evidence, CIS adjudicators are not required to issue an RFE to obtain further documentation to support a decision based on the record or establish the petitioner's ability to pay. CIS adjudicators should make a positive ability to pay determination in anyone of the following circumstances:

(1) Net income. The initial evidence reflects that the petitioner's net income is equal to or greater than the proffered wage.

(2) Net current assets. The initial evidence reflects that the petitioner's net current assets are equal to or greater than the proffered wage.

(3) Employment of the beneficiary. The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage. If the required initial evidence does not establish ability to pay, the CIS adjudicator may deny the petition since the petitioner has not met his or her burden to establish eligibility for the requested benefit.

In certain instances, petitioners may submit a financial statement in lieu of initial evidence and/or additional evidence such as (1) profit/loss statements, (2) bank account records, or (3) personnel records. CIS adjudicators are not required to accept, request, or RFE for a financial statement from U.S. employers who employ 100 or more workers to establish ability to pay. Further, regardless of the number of employees the petitioner's employs, CIS adjudicators are not required to accept, request, or RFE for additional financial evidence. Acceptance of these documents by CIS is discretionary. Therefore if the required initial evidence is submitted and does not establish the petitioner's ability to pay, CIS adjudicators may deny the petition. If the case is denied, the petitioner may file an appeal or a motion to reopen.

The USCIS has announced the expansion of its electronic filing (e-filing) program. The e-filing system is a user-friendly system which helps customers to file their applications online for certain immigration benefits. The e-filing system was started last year with the application for Replacement of Permanent Resident Cards (“green cards”) (Form I-90) and for Employment Authorization Documents (Form I-765). Now, six (6) most commonly used immigration applications have been added to the e-filing system, including: 1) Employment-based Petition for Non-immigrant Worker (Form I-129), 2) Travel documents (Form I-131), 3) Employment-based Petition for Immigrant Worker (Form I-140), 4) Changing or extending Non-immigrant status (Form I-539), 5) Temporary Protected Status (Form I-821), and 6) Premium Processing (Form I-907). Additionally, customers can now create an e-filing account with a unique User ID and Password which will allow users to save a form and return later to complete it at their own convenience and to pay their application fees online by credit card, debit card, or the electronic transfer of funds from a checking or savings account.