CIS RELEASES MEMO CLARIFYING ADJUDICATOR ROLE IN DETERMINING ABILITY TO PAY

A May 4 memorandum from the U.S. Citizenship and Immgiration Services (CIS) discusses in detail how CIS adjudicators should determine whether an employer can pay the offered wage on I-140 immigrant visa petitions. This memo, written by William R. Yates, Assocate Director for Operations, also details the appropriate times for CIS to issue a Request for Evidence (RFE) for financial documentation on I-140 Visa petitions.

According to Yates, CIS adjudicators have been unnecessarily issuing RFEs, causing a delay in processing of I-140 petitions and creating a significant backlog of cases that have limited CIS resources. As part of CIS’s committment to reduce the level of backlogged cases, the agency intends to amend regulations affecting these situations; in the interim, the Bureau has released this memorandum to provide guidance and clearance to adjudicators.

The following three points were clarified and elaborated in the May 4 memorandum:

(1) If a record on ability to pay is not complete, an RFE should be issued

In Yates’s memorandum, it was stated that an adjucaticator should issue an RFE when certain information on Form I-140 is incomplete, including the date the employer was established, the employer’s current number of employees, and their gross or net annual income. An RFE should also be issued when applications do not include at least one of three required documents that establish the employer’s ability to pay the proffered wage.

(2) If a record on ability to pay is complete, adjudicators have the discretion to make decisions based on the provided record

If the petitioning employer has included all required information on Form I-140 and has submitted at least one of the three required documents that establish the employer’s ability to pay the proffered wage, the adjudicator has the right to make a decision based solely on that information. An RFE for further documentation of ability to pay is not required.

Adjudicators may make a positive decision regarding an employer’s ability to pay under the following circumstances:

· The petitioner’s net income is equal to or greater than the proffered wage;

· The petitioner’s net current assets are equal to or greater than the proffered wage; or

· Credible and verifiable evidence is provided by the employer that shows that the employer is employing the beneficiary and is currently paying (or has paid) the proffered wage.

If the provided evidence does not support a decision that the employer can afford to pay the proffered wage, the adjudicator may deny the petition, based on the fact that the employer has not been able to establish eligibility for the I-140 Visa.

(3) Adjudicators are not required to accept financial evidence

While employers are allowed to submit financial statements/evidence instead of required initial evidence, the acceptance of this information as proof of ability to pay is at the discretion of the individual adjudicator. Adjudicators are not required to accept, request or issue RFEs for financial statements from US employers of 100 or more workers. In addition, adjudicators are not required to accept, request or issue RFEs for supplemental financial evidence from any employer, regardless of their business size.

If the adjudicator does choose to accept financial statements/evidence, the provided evidence must clearly establish the employer’s ability to pay the proffered wage. If there are any doubts to this, the adjudicator may deny the case without issuing an RFE to request further documentation of ability to pay.

USCIS Expands Online Filing of Immigration Forms

WASHINGTON, D.C. – Today, U.S. Citizenship and Immigration Services (USCIS) within the Department of Homeland Security announced that it has expanded its electronic filing or E-Filing program. This simple and friendly to use system allows customers to go online to apply for certain immigration benefits. USCIS has added six of the most commonly used immigration applications online, totaling the available applications on the USCIS website to eight forms. Together, the eight forms account for more than 50% of the total volume of benefits applications USCIS receives annually.

“The Department of Homeland Security is committed to improving immigration services while strengthening national security to ensure that our country remains open to those who wish to pursue the American dream,” said Tom Ridge, Secretary of the Department of Homeland Security. “By expanding E-Filing, USCIS will be able to provide immigration information and process benefit applications in a more timely, accurate and efficient manner.”

Eduardo Aguirre, Director of USCIS said, “We want to make sure that our customers can enjoy the highest standards of service, while securing privacy and national security.”

The six new forms and petitions now available online include:
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).

When USCIS initiated E-Filing last year, it began with the application for Replacement of Permanent Resident Cards (“green cards”) (Form I-90) and for Employment Authorization Documents (Form I-765). In addition to the new forms, USCIS has made or is making improvements in other areas to the E-Filing program. Customers who file online can establish an E-Filing “account” that includes a unique User ID and Password. Customers will be able to start completing a form, save it, and return to it later for completion at their convenience. Customers will also be able to pay application fees securely by using a credit card, debit card, or the electronic transfer of funds from a checking or savings account.

USCIS will soon introduce revised EAD cards

The U.S. Citizenship and Immigration Services (USCIS) will soon issue a revised version of the Employment Authorization Document (EAD), also known as Form I-765. The EAD provides proof to employers that individuals are authorized to work in the U.S. The revised version of this document is designed with numerous, additional security features to ensure the document cannot be counterfeited. This revised card will include a magnetic strip, dimensional barcode, and several additional features that can be used to determine the card’s authenticity.

“USCIS is continuously looking for new ways to enhance national security to maintain the integrity of the immigration system,” says Eduardo Aguirre, Director of USCIS. “Including these new security features into one of the most widely used immigration document allows USCIS to make sure the right applicant receives our country’s benefits.”

EADs are typically valid for up to one year. Produced and mailed, in most instances, no later than three days after an individual’s application for benefits is processed and approved, roughly 24,000 EADs are issued per week. These revised cards should begin being issued in early June.

The revised cards also eliminate all references to the former Immigration and Naturalization Service; these cards now only reference the Department of Homeland Security.

Citizens of the Republic of the Marshall Islands No Longer Required to Obtain Work Authorization

Good news for citizens from the Republic of the Marshall Islands (RMI): the USCIS announced in early May that citizens of this island nation now have a simpler way to show permission to work in the U.S. Citizens of RMI may now use an unexpired passport with unexpired documentation that shows admission under the Compact of Free Association (CFA) as proof of work authorization.

Recent changes to the CFA approved by Congress state that citizens of RMI are no longer required to obtain employment authorization documentation. While this change is valid throughout the U.S., it will mostly affect Hawaii, where the majority of RMI citizens reside.

The Republic of the Marshall Islands, along with the Federated States of Micronesia (FSM), received independence in 1986 from their previous identities as United Nations trust territories under U.S. administration. The CFA created extremely close relations between these two island nations and the United States. Through this agreement, the majority of citizens of these nations may live, work and study in the U.S. with no visa requirement. The Republic of Palau, another Pacific island nation, has a similar agreement with the U.S. These three nations are commonly referred to as the Freely Associated States (FAS).

While citizens of the FAS are privy to an open market relationship with the U.S. in regards to employment authorization, citizens of the Republic of Palau and the FSM will still be required to obtain valid employment authorization documentation prior to working in the U.S. The recently passed legislation, however, does approve these same changes for the FSM; these changes will take effect later this year.

USCIS Launches InfoPass Appointment Scheduler in Dallas, Texas

The U.S. Citizenship and Immigration Services (USCIS) announced last week that it has launched InfoPass in Dallas, TX. This Web-based customer service tool will allow individuals to set appointments online with immigration information officers in the Dallas USCIS District Office.

According to USCIS, InfoPass is a Web-based system that enables the public to go online to schedule appointments with immigration information officers at select USCIS offices, and is a convenient method to avoid waiting in long lines for customer service.

“InfoPass could ultimately mean the end of long lines outside the Dallas USCIS information room, which services more than 50,000 people a year,” says Kristi Barrows, Dallas District Director, USCIS. Previous launches of InfoPass in Miami and Los Angeles led to decreases in lines and wait times at those offices. “InfoPass,” says Barrows, “is a simple and customer friendly tool that will allow our customers the convenience and flexibility of doing business.”

In addition, InfoPass will allow individuals in the Dallas metro region to participate in the Dallas Office Rapid Adjustment Pilot Program. The goal of this pilot program is to complete the adjustment of status process within 90 days of filing forms I-130, the Petition for Alien Relative, and I-485, the Application to Register Permanent Residence. Qualified applicants who complete this process within 90 days will not need employment and travel authorization documents.

To sign on to InfoPass visit the USCIS website at http://infopass.uscis.gov. More information about this customer service program is also available online at http://uscis.gov.