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The following are questions and answers discussed during this teleconference. We will post answers received from USCIS as soon as we have them. We also plan to post any additional questions received by email. At the beginning of the call, USCIS Division Chief for Information and Customer Service provided the latest information on the frontlog and answered a few questions submitted to the Ombudsman prior to the call.
Comments
1. Streamline the Process -- One caller said that it can take more than 3 ½ years from the start of the process until the nurse arrives in the United States to work. Many foreign nurses cannot afford to wait that long and will abandon the U.S. immigration process to go to Ireland, Dubai, Canada, Australia, or other countries where the process is much faster. The process is long and expensive in the United States.
2. Cost to the Hospital – One caller in charge of recruiting nurses at a hospital stated that every time the vacancy rate goes up 1 percent, the hospitals lose $300,000.
Questions
1. USCIS 2002 Policy Memo -- One caller noted that USCIS does not appear to be following the 2002 USCIS policy memorandum on nurses. It is not clear whether USCIS accepts a two-year degree because it seems different offices apply different standards. Will USCIS clarify the status of this memo? Is USCIS considering training to ensure that there is more consistent adjudication relating to nurses?
2. Inconsistencies in Adjudication Times and Processing -- A caller noted that the Vermont Service Center is inconsistent in adjudicating H-1C visas. Some cases take very little time and other cases take a very long time. It was noted that USCIS does not publish the processing times on-line, but the National Customer Service Center can provide processing times. Does USCIS plan to post processing times for the H-1C? Another caller said that his company filed three cases that contained essentially the same information about the employer but one was denied, one received a RFE, and the other was approved.
3. Numerical Limits-- The H-1C visa for nurses has a numerical limit of 500 per year. Is each service center limited to a certain number of H-1C cases a year? How does USCIS allocate the visas?
4. Registered Company – One caller suggested that USCIS allow certain medical facilities to register to make it easier on the companies that often file for foreign nurses. Would USCIS consider such a program?
5. Possible Extensions? --Would USCIS allow nurses to file for additional extensions, similar to Optional Practical Training (OPT) extensions?
Question Received Prior to the Call:
1. Tip Sheet on Nurses – Question from CIS Ombudsman’s Office – Do you have a tip sheet that would clarify USCIS’ role in the process for obtaining nurse visas?
2. Explanation re Delays for Foreign Nurses -- From USCIS’ perspective, why does it take so long to get an international nurse to the United States when our country is in a national healthcare crisis?
3. Separate Visas for Schedule A Occupations -- Why are there not separate visas available for Schedule A occupations, which would allow USCIS to be more fluid in meeting the country’s needs?
4. Interpretation of H-1B Visas for Nurses – An email asked if USCIS would take a broader interpretation of the requirements for H-1B visas so that more nursing positions can qualify. The email explained that many hospitals are exempt from the H-1B annual quota due to their non-profit status and affiliation with institutions of higher education, but cannot sponsor nurses for H-1B visas because of USCIS’ view that most nursing positions do not require a bachelor’s degree.
5. Adjustment of Status for Nurses -- Is adjustment of status an option right now given the visa limitations at the Dept of State?
6. Priority for Nurses? – One email noted that priority dates are based on date of filing and not on type of occupation. With shortages in certain industries, such as nursing and pharmacy, is USCIS doing anything differently in the adjudication process to address occupational shortages?
The following are questions from the teleconference and the answers received from USCIS.
1. I-140 Prolonged Processing Times -- One caller noted that the processing times for I-140s have not moved in the last year. What is the reason for the prolonged processing times for the I-140s?
2. Inconsistent Processing Times – A caller asked why the Vermont Service Center (VSC) is so far behind in processing the I-140 applications compared to the other service centers? Do service centers have different priorities?
3. Pre-adjudication -- Can USCIS provide further clarification on whether there is pre-adjudication of I-140s?
4. Medical Examination Requirement -- USCIS suspended the physical exam requirement during the surge and noted that it could be forwarded later upon request. When will the applicant be notified regarding the medical exam? What if the applicant travels and cannot respond timely?
5. AC21 Portability – A caller asked if USCIS will allow flexibility in AC21 portability because of the delays related to the surge?
6. Fingerprints Notices -- Several callers noted that they have not yet received fingerprint notices and are concerned that their case is further delayed. When should an applicant expect to receive a fingerprint notice?
7. Inconsistent Information with Customer Service Avenues -- One caller noted that he filed an I-140/I-485 petition with the Nebraska Service Center (NSC). The case was transferred to the VSC and later to the Texas Service Center (TSC). USCIS’ National Customer Service Center indicated that the case was at the VSC, but USCIS’ Case Status Online indicated that the case was at the TSC. The receipt notices for the I-140 and I-485 note different service centers. Does USCIS split up I-140 and I-485 petitions that are concurrently filed? How can the applicant find out where the case is actually being processed?
Note – Answers to other important questions asked during this call may be answered in connection with other Ombudsman teleconferences.
Questions Received Prior to the Call
1. Green Card Cases Pending Due to FBI Name Checks – The email indicated that earlier USCIS identified about 47,000 cases pending FBI security clearance for more than six months. The email asked if USCIS could confirm that those cases were adjusted accordingly by the respective service centers.
2. Joint USCIS FBI Press Release on Name Checks – The email noted that in an April 2, 2008 joint press release, “USCIS and FBI Release Joint Plan to Eliminate Backlog of FBI Name Checks,” certain milestones were established. The email asked if USCIS could describe the progress of these targets.
3. Transferred Cases – Can USCIS explain what is happening to cases that were transferred, for example, from the Nebraska Service Center to the Texas Service Center? One person emailed and said it appears that those cases have a lower priority for processing. Please clarify.
4. R-1 Extension – The email indicated that the individual filed Form I-129 for an R-1 extension last year in May and the visa expired in July. The question was how much longer to wait?
5. Posted Processing Times – The email indicated that the I-140 was pending more than 320 days even though USCIS’ posted processing times showed that the application already should have been processed. Are the processing times a real reflection of what is going on?
6. Tracking Case Status – The email asked how to track the status of an I-140 application if it is not listed on USCIS’ Case Status Online and the call center does not have any information?
7. Fingerprints -- Fingerprints are valid for 15 months and the Employment Authorization Document (EAD) is valid for one year. The email noted that requiring the applicant to obtain fingerprints for the EAD renewal leads to processing delays for the EAD and places an unnecessary burden on the applicant who may have to take off work. Why does USCIS require the applicant to obtain new fingerprints before they expire?
The following are questions from the teleconference we will post answers from USCIS when they are available.
1. Lack of Communication re Production of Green Card – A caller described a lack of communication with USCIS regarding receipt of the actual green card after approval of the green card application. Upon not receiving the card, the caller called USCIS. The call representative said to wait 30 days. The caller again called USCIS after not receiving the card and USCIS gave the same answer. At an Infopass appointment, the officer expedited the card. The caller waited another 30 days, called USCIS, and was told to wait another 45 days. The caller had not moved over this time. How can USCIS track whether a card has been mailed?
2. Premium Processing – One caller asked if USCIS is considering expansion of premium processing to other types of applications. Can you please provide information that supplements USCIS’ June 16, 2008 press release on premium processing?
3. I-140 Processing – A caller asked if USCIS could publish on its website monthly or quarterly I-140 reports to increase transparency in processing.
4. Multi-year Employment Authorization Documents (EADs) – A caller expressed confusion as to why an I-140 must first be approved before a multi-year EAD can be issued. Please explain.
5. First In First Out (FIFO) Processing – A caller asked if USCIS is processing cases based on the received date or the system entry date? The caller observed that it appears that USCIS is not processing applications as they are received. Callers also indicated that their cases were past the posted processing times. Can USCIS please explain why that might be happening? Also, callers observed that some service centers were much slower than others. Please explain.
6. I-140 Stand Alone versus Concurrent Processing – Several callers observed that USCIS appears to be processing I-140 stand alone applications differently than those concurrently filed with an I-485. Many callers also mentioned that most of the issue appears to be with the Texas Service Center. Please explain.
7. EAD Renewals – A caller asked whether I-485 receipt notices are required for EAD renewals. USCIS indicated to the caller that a receipt notice is required, but the instructions do not require one. Please explain.
Another caller mentioned that the start date of EAD renewal cards should be the approved date of the new EAD card, or the expiration date of the old one. In April 2006, the Ombudsman recommended that USCIS issue an EAD valid as of the date an earlier EAD received by the applicant expired (Recommendation #25). The Ombudsman understands that USCIS was planning to assess the possibility of adjusting its system to allow production of EADs with the synchronized validity dates. Can USCIS provide a further update?
Questions Received Before the Call
1. Waiver of Inadmissibility Fee Waivers? - Many individuals applying for the U-visa are undocumented and must file the waiver of inadmissibility. Does USCIS accept fee waivers for the waiver of inadmissibility?
2. Blanket Waiver of Inadmissibility? - The most common inadmissibility issue affecting individuals applying for the U-visa is entry without inspection and prior unlawful presence. Would USCIS consider providing a blanket waiver of these grounds of inadmissibility without requiring a Form I-192? This would reduce the workload and processing times.
3. Law Enforcement Certifications - Some practitioners are having trouble getting the LEA certified by the designated officer because the designated officer has not worked on the case, does not have time, or is reluctant to sign for someone who is undocumented. Is USCIS considering some flexibility in the final regulations by allowing the officer that worked on the case to sign the LEA?
4. Outreach to Certifying Agencies - We have received both positive and negative feedback regarding the cooperation of the certifying agencies. Has USCIS been conducting any outreach to agencies such as police stations or DA’s offices regarding the LEA certification necessary for the U-visa?
5. Inability to Obtain LEA Certificate - What if an individual applying for a U-visa is currently in removal proceedings and qualifies for the U-visa but is unable to get the LEA certificate? Can he or she contact USCIS for assistance with the relevant law enforcement agency?
6. Processing Times - Will USCIS begin to post the processing times for Form I-918 on the website?
7. Employment Authorization Documents - Before the interim final rule, applicants placed in deferred action were able to apply for an EAD. They cannot apply for an EAD under the interim final rule. Considering that individuals applying for a U-visa are waiting more than a year for a decision on their cases, is USCIS considering allowing them to obtain EADs while their case is pending?
8. Adjustment of Status - Some of those individuals applying for a U-visa, who were in deferred action status for more than three years, are eligible to adjust for status. Can USCIS clarify procedures for those individuals who are eligible to adjust but have not received a decision on the I-918?
9. Evidence Required - Can USCIS provide some guidance on what evidence is required to demonstrate “substantial mental or physical abuse"?
Evidence to further establish the nature of the abuse suffered may include such documentation as reports and affidavits from police, judges, other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel. Petitioners who have obtained an order of protection against the perpetrator or taken other legal steps to protect themselves against the perpetrator should submit copies of the relating legal documents. A combination of documents such as a photograph of the visibly injured applicant supported by affidavits of individuals who have personal knowledge of the facts regarding the criminal activity may be relevant as well.
10. Certifying Agencies - Is it possible for USCIS to post a listing of certifying agencies on the USCIS website as a resource?
11. Approvals and Denials - Do you have a number of the U-visa approvals/denials since the interim final rule was issued?
12. Current Processing Times - What are the current processing times?
Additional Questions Submitted Before the Call
1. Requests for Evidence (RFEs) – Individuals applying for a U-visa have reported that RFEs in U-visa adjudications have a 33-day response time. Practitioners have indicated that 33 days is a very short period of time to gather evidence and respond adequately to such a request. Moreover, it is a short time to raise money for the $545 fee if an I-192 waiver is required as part of the RFE. Can USCIS explain why there is a 33-day response time for RFEs? Is this the standard time allotted for RFEs issued to U-visa petitioners? Will USCIS consider that RFEs in the U-visa context be issued the maximum allowable period to respond? 2. Order of Adjudication - It appears that newly filed cases are being processed before those individuals who received interim relief. Is USCIS/the Vermont Service Center prioritizing U-visa petitions?
2. Order of Adjudication - It appears that newly filed cases are being processed before those individuals who received interim relief. Is USCIS/the Vermont Service Center prioritizing U-visa petitions?
USCIS Response on October 17, 2008 -- Yes, at this time, cases are being adjudicated out of first-in first-out (FIFO) order if the I-192 form and fee are present because these are complete filings. If the I-192 form and fee have not been submitted, we are requesting them. The petition cannot be adjudicated without all required evidence.
In addition, U nonimmigrant status is only valid for four years and the time spent in interim relief counts toward that time. Petitioners for the U visa must be in valid nonimmigrant status in order to apply for adjustment of status. Currently, many of the petitioners have had interim relief for at least four years. This means that when we approve these U visa petitions, these petitioners will immediately fall out of U nonimmigrant status. Unfortunately, these petitioners cannot currently apply for adjustment of status since the adjustment regulation hasn’t yet been published (it is currently pending with the Office of Management and Budget). Therefore, we are helping these petitioners remain in a valid status by withholding the adjudication of their petitions until the regulation is published and they will be able to apply for adjustment.
3. Number of Pending Cases - How many U-visa petitions has USCIS received? Is this close to or exceeding the 10,000 limit? If so, how does USCIS plan to address the waiting list? If not, will unused visas be carried over to the next fiscal year? Will USCIS follow first-in first-out (FIFO) processing?
4. Terminology – In the regulations, “helpful" defines an individual who did not refuse to comply with a reasonable request. When a victim gives the police a statement concerning the incident, is that sufficiently “helpful" if nothing else was requested of her?
Questions During or After the Call:
1. LEA Certificate - A caller asked whether a petitioner has to supply a new law enforcement agency certificate with Form I-918 if s/he was initially granted deferred action.
2. Advance Parole - Another caller asked whether an individual applying for a U-visa can apply for advance parole, a travel document, while his/her case is pending?
3. Final Rule - In September, USCIS issued an interim final rule on the U-visa. Does USCIS plan to issue a final rule? If so, when?
4. Indirect Victims - Callers asked whether an indirect victim can apply for U-visa status. For example, if a two-year old U.S. citizen child is a victim of a qualifying crime under the interim final regulation, can the mother, an indirect victim, apply for U-visa status?
5. RFEs for Inadmissibility Waivers - A caller mentioned that USCIS has issued RFEs on inadmissibility waivers for individuals applying for the U-visa, but does not issue similar RFEs for T visas. Please explain.
6. Refusal to Provide Certification - A caller asked what steps an individual applying for a U-visa can take if the certifying agency refuses to provide the certification. Please explain.
7. Statistics - When will USCIS publish statistics on the number of U-visa petitions pending, approved, and denied?
8. Outreach - How does USCIS decide where to do its outreach to local law enforcement?
9. Waivers of Inadmissibility - An individual wants to file for a U-visa, but the law enforcement certification will soon expire and the petitioner does not have money to file Form I-192 for the waiver of inadmissibility. If the case is denied due to inadmissibility, can the individual re-file a U-visa petition if and when the fee waiver regulations are passed for Form I-192?
This page was last reviewed/modified on November 24, 2008.