CSC Updates in February 2006

March 6, 2006

The CSC Liaison Committee of the American Immigration Lawyers Association (AILA) had a meeting with representatives from the California Service Center (CSC) on February 22, 2006. A number of immigration matters were discussed. The following are some highlights of the meeting, which we hope will provide useful information for our readers in planning their immigration.

Processing of I-140 with no visa Available

The CSC adjudicates applications in receipt date order.  The CSC confirms all classifications of immigration cases shall be processed within 6 months.   Beneficiary of a pending I-140 with no visa number available, is eligible to apply for a one-year extension under Section 106 of AC21.

Employer's Financial Ability to Pay

To obtain approval of a LC-based I-140 immigrant petition for a foreign national worker, an employer must show ability to pay the offered wage. Regulations state that the petitioner must be able to pay from the priority date forward.

The CSC reconfirms it stance that an employer must show the ability to pay the prevailing wage from the year in which the labor certification was filed, rather than as of the individual's priority date.  There are three basic approaches that can be used to establish a petitioner’s ability to pay:

• The petitioner paid the beneficiary a salary equal to or greater than the proffered wage in that year.
• The petitioner’s net income in the year of filing was equal to or greater than the proffered wage
• The petitioner’s net current assets in the year of filing were equal to or greater than the proffered wage.

CSC also reiterated that the petitioner may still meet the requirements with additional evidence.

Carry-Over of Priority Date

The CSC confirmed that an individual with an earlier priority date, established through an approved I-140 petition in one employment-based (EB) category, may transfer that earlier priority date for a later case filed in a different employment-based category. For instance, applicant has an approved I-140 and an established priority date in the EB3 category. Applicant now files an I-140 through EB1.  Accordingly to CSC, when the EB1 case is approved, the old priority date from the EB3 will be carried over and listed as the priority date on the EB1 approval notice.

This can be an enormous benefit when the retention of the earlier priority date is permitted for a later filed EB case. We note that this procedure does not work if the initial I-140 petition has been revoked due to fraud or for use in a labor substitution case.

I-131 and 1-765 Filings

The CSC explained that, when I-485 applications are transferred to any local district office, the Employment Authorization Document (I-765) and Advance Parole (I-131) petitions should be filed at the office that originally had jurisdiction over the case. For example, if a case originated at the VSC, but is later sent to a local office, the I-765 and I-131 filings should be filed with the VSC. If a case originated at another service center, such as the Texas Service Center (TSC), and is transferred to the CSC, the I-765/s and I-131/s should be filed with the TSC. It is possible that these will be transferred, also. This does not mean, however, that they were incorrectly filed.

New H1Bs after One-Year Departure

Having spent six years in H1B status, a foreign national may depart the U.S. for a full year and become eligible for another six years of H1B status. Individuals again become subject to the quota or cap, however. Thus, those who avail themselves of the full six years on H1B likely end up spending more than a year abroad as a result of the H1B cap. The CSC confirmed its position that an employer cannot file the new H1B petition until the beneficiary can show that s/he was out of the U.S. for at least one year.

Inquiries on Transferred Cases

It was requested that status inquiries for cases transferred to the CSC from other offices or Service Centers be held for at least 180 days after a transfer notice is received without initiating a status inquiry.

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Posted: January 26, 2006

USCIS news release discusses the receipts or transfer notices some customers may have received from the CSC for cases filed with local District Offices in the USCIS Eastern Region or with the National Benefits Center.

For details, please see here.

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Posted: November 17, 2005

On October , 2005, the California Service Center (NSC) provided representatives of the American Immigration Lawyers Association (AILA) with their views on various immigration issues including such issues as "successor-in-interest" matters, I-140s, labor certifications, priority dates, biometrics, I-485s, I-765s, I-131s, ADIT processing, , H-1B cap, RFE's, etc. This summary of the highlights of that report is provided for the benefit of our Jingchenglaw.com readers.

"Successor-in-interest" When the Company was Acquired

Pursuant from a USCIS memo dated 12/10/93, the "successor-in-interest" concept, in the I-140 context, includes the requirement that the acquiring entity have assumed the rights, duties, obligations, and assets of the acquired organization. Immigration liabilities and obligations in the I-140 context would be the offer of employment, compliance with department of labor requirements and ability to pay. Petitioner must submit evidence of the take over (like contract or agreement). Both the predecessor and the successor must demonstrate ability to pay.

Filing Multiple I-140 in Support of a Single Labor Certification

CSC indicates it does not recommend filing multiple I-140 petitions in support of a single beneficiary/labor certification. This creates an excessive additional workload for CSC and could potentially have a detrimental effect on projected visa availability and visa cut-off dates.

If the petitioner wishes to change the classification for a pending petition which they filed, the originally filed petition may be amended. If the petitioner does choose to file more than one petition, each petition filing must be a complete and independently supported application. Any subsequent I-140 petition filing should also provide a photocopy of the labor certification, an I-797 receipt notice for the filing that contains the original labor certification and a brief explanation as to why the current filing does not include the original labor certification.

Maintaining Priority Date of an Earlier Approved I-140

CSC agrees that a beneficiary is entitled to the priority date of an earlier approved I-140. Generally speaking, the beneficiary retains the priority date for any future filings, unless the previously approved I-140 has been revoked because of fraud or willful misrepresentation. Factors may include successorship of interest, change of employer, change of location, change of job, or change of employment classification.

Process of Fingerprint and Biometric for I-485

CSC clarifies that the Biometrics process for the I-485 is basically the same process as the old I-89. This process is needed for the card production.

If Fingerprints were recently taken, the BIOs were also captured and once the I-485 is approved, it will go straight to card production. The cases where the applicant may have been finger printed, say 10 months ago, may not have had the BIO's electronically captured. In these cases, the applicant will need the basic BIO's captured in order for the card to be produced. (one print, photo, and signature). I-485- Children under 14 (Photos Only) I-765- Photo, fingerprint of the Index finger and signature. I-131- N/A

Correction of Typo Error on a Submitted Form I-140 (Labor Certification Based)

The CSC advises the petitioner to submit correspondence requesting the error be corrected. The adjudicator will consider the request at the time of adjudication. An amended I-140 receipt will not be issued. A new fee is not required.

The following excerpt from the I-140 SOP applies if at the time of adjudication the officer determines a different classification is appropriate: Pursuant to Opportunity for Certain Employment Based Petitioners to Change their Requested Classification [CSC 70/6], if after review, it is determined that the petitioner is requesting a classification for which the beneficiary clearly does not qualify, but the beneficiary appears to qualify for another classification, the petitioner may be offered the opportunity to change to a new classification.

7^th H-1B Extension Based on a Pending Labor Certification

CSC acknowledged it has been requesting additional information for 7th year H extensions based on a pending labor certification. There are several versions of the request for evidence, but they are all basically asking for information other than the EDD acknowledgement letter or DOL transfer notice. The RFE's mention the DOL 7th year email and the 45-day letters as proof of a pending LC. RFE’s state that Petitioners should have received a 45-day letter by now for all cases. Based upon information from DOL, while cases may be at the backlog centers, most are not yet entered in the computer and therefore, many cases have not received the 45 day letters. In addition, cases are not being worked in order. In addition, the RFE’s state that there is an email to obtain information from the BEC's.

CSC clarifies, in such cases, it will accept any documentation showing proof that the case is still pending. If an RFE is received requesting the 45-day letter, the 84-day response window should be more than enough time to secure verification. The officer will examine each case and determine which documents need to be submitted.

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