I received this note today from MURTHYBULLETIN .If anybody has heard similar news please update the thread.
There has been a significant change in the way that the USCIS Service Centers
will process concurrently filed I-140/I-485 cases. In a March 31, 2004
memorandum (Ohata Memo), Fujie Ohata, Director of Service Center Operations,
issued instructions to the Service Center Directors regarding certain procedural
changes. Under the new procedures, a concurrently filed I-140/I-485 should be
adjudicated together. Previously, the I-140 was reviewed on an initial, cursory
level simply to identify any clearly frivolous cases. The I-140 was then
adjudicated independently, without regard for the processing of the I-485. The
cursory, or prima facie, review was performed to avoid improper receipt of the
benefits of the I-485 filing, including obtaining an Employment Authorization
Document (EAD) or Advance Parole (AP). Under this Memo, concurrently filed
I-140/I-485 cases will be processed and adjudicated simultaneously.
I-140 Will Not Be Processed until I-485 is Ready to Be Processed
The Ohata Memo states that, even when the I-140 is ready for processing and
placed on the 'ready to adjudicate' shelf, it will not be processed unless the
I-485 is also ready for adjudication. The I-485 is not ready until the
fingerprints and name checks have cleared. Essentially, the I-140 will be held
in abeyance until these procedures have been completed in connection with the
I-485. This raises significant concerns for the application of AC21 portability.
AC21 portability, as interpreted under current USCIS memoranda, requires an
approved I-140 and an I-485 that has been pending for 180 days. Thus, delaying
the I-140 adjudication until the I-485 can be approved inevitably will curtail
the ability to use AC21 portability in most cases under these current USCIS
interpretations. Of course, since AC21 is only available for long-delayed cases,
if the new process speeds adjudications to within a six-month period, AC21
portability is not an available option. While we would certainly favor case
adjudications within fewer than 180 days, current processing times are
approximately two to five times this timeframe. Thus, this may not be a
realistic goal, at least in the near future.
RFEs on I-140 and I-485 Should be Issued Separately
The Memo directs that Requests for Evidence (RFEs) be issued separately on
I-140s and I-485s, for legal reasons. If both the I-140 and I-485 are issued
RFEs, the entire case will await the responses. If there is a response to the
I-140 but not the I-485, the I-140 will be adjudicated and the I-485 denied. If
there is no response to the I-140, both cases will be denied, whether or not
there is a response to the I-485.
Prima Facie Review of I-140 Not Required in Non-Concurrent Cases
The Ohata Memo states that with a non-concurrently filed I-140, I-485, I-765
(EAD), and I-131 (AP) filings will continue to be processed as before. However,
the Service Center Directors have discretion to end the prima facie review or
modify the scope of that review. It is not clear from this whether the prima
facie review would be eliminated in order to allow for complete case
adjudication at one time. It would seem difficult to accomplish this, in light
of the need for fingerprinting and background checks for the I-485. However, it
is doubtful that the AP or EAD would be issued without some review of the basic
legal sufficiency of the I-140 petition.
NSC’s Implementation of the Ohata Memo
The Nebraska Service Center (NSC) issued information regarding its plan to
implement the new concurrent filing procedures. It has taken various internal
reorganization efforts to permit the concurrent processing of I-140s/I-485s
effective from April 30, 2004. The NSC notes that this was not part of the pilot
program to adjudicate the I-140s/I-485s within 75 days of filing. The NSC also
emphasizes that it anticipates a slow-down in processing non-concurrent I-485s,
as they will be processing the concurrent and non-concurrent on separate tracks,
giving priority to concurrently filed I-140s and I-485s over those that are not
filed concurrently.
What Will Happen to Your Case?
At this point, it is not entirely clear exactly what this will mean for one's
case. The purpose of the new procedures appears to be to reduce processing times
and increase efficiency. Holding the I-140 adjudication until the I-485 can be
approved, however, may end up slowing the I-140 processing. If the I-140 is not
approved, then AC21 is held not to apply under current interpretations of the
interplay between AC21 law and concurrent filing. If processing is not completed
in a reasonable time, and AC21 portability cannot be used, this may mean that
more cases will be denied if there is a termination of the employer’s
sponsorship of the I-485 applicant, for any reason.
Given staffing shortages, whenever one type of case processing is given
priority, another type suffers. This is what the NSC seems to be stating with
their information about anticipated delays in those cases that are filed
non-concurrently. Of course, if the I-140s and I-485s could be processed more
quickly, time could be saved, as there would be far fewer requests for EADs and
APs. Faster processing would also eliminate the need for AC21 portability since
it would not apply if the I-485 is adjudicated within 180 days of filing. At
this point, we will be closely monitoring the progress report on the various
Service Centers regarding this matter, and will share this information with our
MurthyDotCom and MURTHYBULLETIN readers as the changes unfold.
gvr.
There has been a significant change in the way that the USCIS Service Centers
will process concurrently filed I-140/I-485 cases. In a March 31, 2004
memorandum (Ohata Memo), Fujie Ohata, Director of Service Center Operations,
issued instructions to the Service Center Directors regarding certain procedural
changes. Under the new procedures, a concurrently filed I-140/I-485 should be
adjudicated together. Previously, the I-140 was reviewed on an initial, cursory
level simply to identify any clearly frivolous cases. The I-140 was then
adjudicated independently, without regard for the processing of the I-485. The
cursory, or prima facie, review was performed to avoid improper receipt of the
benefits of the I-485 filing, including obtaining an Employment Authorization
Document (EAD) or Advance Parole (AP). Under this Memo, concurrently filed
I-140/I-485 cases will be processed and adjudicated simultaneously.
I-140 Will Not Be Processed until I-485 is Ready to Be Processed
The Ohata Memo states that, even when the I-140 is ready for processing and
placed on the 'ready to adjudicate' shelf, it will not be processed unless the
I-485 is also ready for adjudication. The I-485 is not ready until the
fingerprints and name checks have cleared. Essentially, the I-140 will be held
in abeyance until these procedures have been completed in connection with the
I-485. This raises significant concerns for the application of AC21 portability.
AC21 portability, as interpreted under current USCIS memoranda, requires an
approved I-140 and an I-485 that has been pending for 180 days. Thus, delaying
the I-140 adjudication until the I-485 can be approved inevitably will curtail
the ability to use AC21 portability in most cases under these current USCIS
interpretations. Of course, since AC21 is only available for long-delayed cases,
if the new process speeds adjudications to within a six-month period, AC21
portability is not an available option. While we would certainly favor case
adjudications within fewer than 180 days, current processing times are
approximately two to five times this timeframe. Thus, this may not be a
realistic goal, at least in the near future.
RFEs on I-140 and I-485 Should be Issued Separately
The Memo directs that Requests for Evidence (RFEs) be issued separately on
I-140s and I-485s, for legal reasons. If both the I-140 and I-485 are issued
RFEs, the entire case will await the responses. If there is a response to the
I-140 but not the I-485, the I-140 will be adjudicated and the I-485 denied. If
there is no response to the I-140, both cases will be denied, whether or not
there is a response to the I-485.
Prima Facie Review of I-140 Not Required in Non-Concurrent Cases
The Ohata Memo states that with a non-concurrently filed I-140, I-485, I-765
(EAD), and I-131 (AP) filings will continue to be processed as before. However,
the Service Center Directors have discretion to end the prima facie review or
modify the scope of that review. It is not clear from this whether the prima
facie review would be eliminated in order to allow for complete case
adjudication at one time. It would seem difficult to accomplish this, in light
of the need for fingerprinting and background checks for the I-485. However, it
is doubtful that the AP or EAD would be issued without some review of the basic
legal sufficiency of the I-140 petition.
NSC’s Implementation of the Ohata Memo
The Nebraska Service Center (NSC) issued information regarding its plan to
implement the new concurrent filing procedures. It has taken various internal
reorganization efforts to permit the concurrent processing of I-140s/I-485s
effective from April 30, 2004. The NSC notes that this was not part of the pilot
program to adjudicate the I-140s/I-485s within 75 days of filing. The NSC also
emphasizes that it anticipates a slow-down in processing non-concurrent I-485s,
as they will be processing the concurrent and non-concurrent on separate tracks,
giving priority to concurrently filed I-140s and I-485s over those that are not
filed concurrently.
What Will Happen to Your Case?
At this point, it is not entirely clear exactly what this will mean for one's
case. The purpose of the new procedures appears to be to reduce processing times
and increase efficiency. Holding the I-140 adjudication until the I-485 can be
approved, however, may end up slowing the I-140 processing. If the I-140 is not
approved, then AC21 is held not to apply under current interpretations of the
interplay between AC21 law and concurrent filing. If processing is not completed
in a reasonable time, and AC21 portability cannot be used, this may mean that
more cases will be denied if there is a termination of the employer’s
sponsorship of the I-485 applicant, for any reason.
Given staffing shortages, whenever one type of case processing is given
priority, another type suffers. This is what the NSC seems to be stating with
their information about anticipated delays in those cases that are filed
non-concurrently. Of course, if the I-140s and I-485s could be processed more
quickly, time could be saved, as there would be far fewer requests for EADs and
APs. Faster processing would also eliminate the need for AC21 portability since
it would not apply if the I-485 is adjudicated within 180 days of filing. At
this point, we will be closely monitoring the progress report on the various
Service Centers regarding this matter, and will share this information with our
MurthyDotCom and MURTHYBULLETIN readers as the changes unfold.
gvr.