- Visas for Nurses: "How Does This Impact Your Medical Facility?" May 30, 2008
- USCIS Summer 2007 Application Surge: "How Is It Affecting You Now?" May 30, 2008
- CIS Ombudsman's 2008 Annual Report: "Your Questions and Comments" July 29, 2008
- "U Visa: One Year After the Interim Final Rule" August 26, 2008
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.
Visas for Nurses: "How Does This Impact Your Medical Facility?" May 30, 2008
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.
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?
- USCIS Response: USCIS will consider adding a tip sheet to its website.
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?
- USCIS Response: Sections 212(a)(5)(C) and 212(r) of the Immigration and Nationality Act provide important safeguards designed to ensure that foreign nursing graduates actually possess the educational background and skills needed to practice as professional nurses in the United States. Moreover, the statute sets numerical limits on the admission of aliens as permanent residents on the basis of their intended employment.
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?
- USCIS Response: The listing of professional nursing as a “Schedule A” occupation in 20 CFR 656.5(a)(2) establishes only that the labor certification requirement in section 212(a)(5)(A) of the Act is satisfied with respect to professional nurses. That is to say, the listing in Schedule A reflects only the Department of Labor’s determination there is a shortage of professional nurses, and the employment of an alien as a professional nurse will not generally have an adverse impact on wages and working conditions in the United States. The individual nurse must still, however, be eligible for classification for an employment-based immigrant visa. The number of employment-based immigrant visas that is available each fiscal year is set by statute. Congress has not created a separate immigrant visa classification for professional nurses, thus, they must use the existing employment-based visa, generally a “skilled worker” visa under the Third Employment Based preference. Any change to the employment-based visa categories to create a separate immigrant visa for nurses would require new legislation.
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.
- USCIS Response: The H-1B nonimmigrant visa is available to aliens in “specialty occupations,” which, generally, require at least a bachelor’s degree in a specific field as a minimum employment qualification. No state in the United States currently limits RN licensure to individuals who hold a bachelor’s degree in nursing. Thus, except for aliens who will be employed to practice in certain nursing specialties that do actually require at least a bachelor’s degree or higher as a minimum employment qualification, the H-1B nonimmigrant visa is not generally available to RNs. Any change to the current H-1B visa requirements must be made through Congress.
In 1989, Congress enacted the H-1A nonimmigrant visa category as a response to a sustained shortage of registered nurses (RNs). Although originally intended to end on September 30, 1995, the program was extended through legislation until September 1997.
On November 12, 1999, President Clinton signed into law H.R. 441, the "Nursing Relief for Disadvantaged Areas Act" (Public Law 106-095). This law repealed the H-1A visa for nurses and created a new nonimmigrant visa category, the H-1C visa, for nurses who will work in areas designated as “Health Professional Shortage Areas by the Department of Health and Human Services.“ The H-1C visa, which is more restrictive in its application than the H-1A visa, has been extended until December 20, 2009.
The H-1A and H-1C visas were specifically created for RNs. So far, Congress has not sought to reenact those or a similar nurse-oriented classification. For the reasons stated above, all nurses do not fit under the H-1B classification.
5. Adjustment of Status for Nurses -- Is adjustment of status an option right now given the visa limitations at the Dept of State?
- USCIS Response: The limitations on the availability of immigrant visas apply to adjustment applicants, just as they do to immigrant visa applicants. For this reason, if no immigrant visa numbers are available for purposes of issuing an immigrant visa, adjustment of status is also unavailable. Registered nurses will generally file for adjustment of status, or for immigrant visas, under the employment-based third preference (EB3) visa category. At this time, there are no visas current for the EB3 category, and this situation applies to adjustment applicants as well as to immigrant visa applicants. Please check the Department of State’s monthly Visa Bulletin for visa availability: http://travel.state.gov/visa/frvi/bulletin/bulletin_1770.html.
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?
USCIS Summer 2007 Application Surge: "How Is It Affecting You Now?" May 30, 2008
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?
USCIS Response on October 29, 2008 -- The caller stated the I-140 was sent to the Vermont Service Center (VSC) in July 2007 and that the I-140 processing times have not moved since the petition was filed. The VSC no longer processes I-140s. That information has been removed from the USCIS website. As of April 1, 2006, the Texas Service Center (TSC) and the Nebraska Service Center (NSC) are responsible for the processing of I-140 petitions.
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?
USCIS Response on October 29, 2008 -- The VSC no longer processes I-140s. That information has been removed from the USCIS website. As of April 1, 2006, the TSC and the NSC are responsible for the processing of I-140 petitions. In general, the service centers have the same priority – adjudicating applications/petitions as efficiently as possible. However, the workload is not the same for each of the service centers, and they may allocate resources differently based on their individual needs.
3. Pre-adjudication -- Can USCIS provide further clarification on whether there is pre-adjudication of I-140s?
USCIS Response on October 29, 2008 -- USCIS does not pre-adjudicate I-140 petitions
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?
USCIS Response on October 29, 2008 -- The applicant will be notified via a Request for Evidence (RFE) once an adjudicator reviews the file. The applicant has 30 days to respond to the RFE. If the applicant plans to travel and cannot respond to the RFE within a timely manner, the applicant or his/her representative can request a short extension to the 30 day deadline. The applicant should try to complete the physical exam (TB test) and immunization shortly after applying. If the applicant has the exam in hand, it can be mailed by the applicant or representative once the RFE is received. Please note that the exam results must be in a sealed envelope from the USCIS approved doctor.
5. AC21 Portability – A caller asked if USCIS will allow flexibility in AC21 portability because of the delays related to the surge?
USCIS Response on October 29, 2008 -- USCIS does not plan to change its interpretation of AC21.
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?
USCIS Response on October 29, 2008 -- The notice should be mailed out 1-2 days after the application is receipted. This is not true of the I-589 application for asylum. Asylum has its own fingerprint scheduling system, which can take a week to generate a notice. Otherwise, counting mail delivery time, it is the same as getting any receipt notice - within two weeks of receipting the application by USCIS.
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?
USCIS Response on October 29, 2008 -- Under the bi-specialization filing structure, employment-based adjustments (I-485) are filed directly with either the NSC or the TSC, based on the permanent location of the beneficiary’s employment. During a receipting front-log or other competing resource constraints, applicants/petitioners may receive receipt notices from a location other than where the case was originally filed. This temporary movement of cases is largely due to the agency’s efforts in streamlining certain application workflows to accommodate for a large influx of applications – which was the situation during summer of 2007. After fee receipting, these cases are then transferred back to the appropriate adjudication jurisdiction. However, cases that are concurrently filed are kept together at the adjudication center. This ensures that the service centers are managing their workload in transparent, efficient, and consistent manners.
USCIS recognizes that the transfer of receipting workload may be confusing to the customers at times. While USCIS is transferring its work around, delays between our service centers’ systems and some of the automated online systems may have also contributed to the inconsistent information on the exact whereabouts of these files. However, USCIS feels that the overall effect of processing efficiency outweighs the inconveniences that may have been inadvertently created.
USCIS continually assesses its workload and may decide to temporarily shift files to other locations in an effort to increase efficiency; customers are then advised to reference their latest receipt notice in order to identify the exact location of their files. The Information and Customer Service Division and Service Center Operations are working together in amending the call center scripts to ensure that additional follow-up questions are being asked to determine whether applicants have received any transfer notices prior to determining the exact location of their pending file.
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.
- USCIS Response: To clarify, USCIS did not state that it had identified 47,000 cases that were pending FBI Name Check clearance “for more than six months.” Rather, USCIS stated that it had identified approximately 47,000 cases that remained pending solely because of the FBI Name Check. A portion of those 47,000 cases involved FBI Name Checks that had been pending more than six months.
In May 2008, USCIS identified 10,500 I-485 cases that were pending solely because of the FBI Name Check. In the prior three months, from February to May 2008, USCIS noted a reduction in the total number of I-485 cases in this category by 36,500. Please note that the FBI Name Check category involves a constant flow of cases (meaning cases are continually referred by USCIS to the FBI for processing, and cases are continually returned by the FBI to USCIS). Our systems do not perform case-by-case tracking. Thus, while all 47,000 cases referenced earlier may have been adjudicated at this point, we can only definitively state that at least 36,500 cases from that time period have been completely adjudicated.
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.
- USCIS Response: The first milestone was for all FBI Name Checks pending for more than four years to be finalized by March 31, 2008. The second milestone was for all FBI Name Checks older than three years to be finalized by May 31. The third milestone was for all FBI Name Checks older than two years to be finalized by July 31. The first three milestones have all been met. USCIS and the FBI have set four additional milestones. As of August 4, the agencies were on target to achieve all four of the remaining milestones.
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.
- USCIS Response: Transferred cases are incorporated into TSC's workflow based upon the filing date of the case and are not given a lower priority for processing than cases originally filed at the TSC. However, this interfiling process within the I-140 workflow may result in a short-term delay in processing given the volume of cases.
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?
- USCIS Response: The petitioner should contact USCIS’ National Customer Service Center (NCSC) at 1-800-375-5283 for a status update.
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?
USCIS Response on October 29, 2008 -- Processing times are a tool that customers can use to determine how long it will take to adjudicate a case. Not all cases are the same, and some cases may take longer to process than others.
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?
USCIS Response on October 29, 2008 -- The applicant can schedule an INFOPASS appointment to appear at a local office in order to track the status of an I-140 petition. However, in the event that Case Status Online does not show the latest transaction of the case and the call centers do not have any further information, the customer can request a service request be issued to the field office or service center that has jurisdiction over their case.
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?
USCIS Response on October 29, 2008 -- There is a difference between fingerprinting for adjustment of status/naturalization and fingerprinting for EAD processing. The fingerprints taken for adjustment of status/naturalization applicants are submitted to the FBI for completion of a background check. However, the primary reason EAD applicants are asked to appear for biometrics is to verify their identity. USCIS needs to ensure that the person seeking a renewal of the EAD is the same person as the one who applied initially.
CIS Ombudsman's 2008 Annual Report: "Your Questions and Comments" July 29, 2008
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?
"U Visa: One Year After the Interim Final Rule" August 26, 2008
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?
- USCIS Response: While there is no fee waiver currently available for the I-192, USCIS intends to publish a regulation in the future that will allow waivers of the I-192 fee for applicants filing for U nonimmigrant status. Meanwhile, applications for U nonimmigrant status filed with Form I-192 without the proper fee will be rejected. Applications filed with the Form I-192 and the proper fee, and those not requiring the Form I-192, will be accepted, processed, and adjudicated.
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.
- USCIS Response: The statute does not allow for a blanket waiver of these inadmissibility grounds.
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?
- USCIS Response: USCIS is reviewing the comments it received in response to the U Interim Rule regarding who may sign the law enforcement certification.
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?
- USCIS Response: USCIS has been conducting nationwide outreach for local law enforcement about the certification process for the U-visa. There has been outreach to and liaison with individual police officers, victim-witness coordinators at police departments, and management authorities at police departments and other law enforcement agencies in order to educate and help police plan coordinated strategy for victims, and to facilitate the certification process. These efforts so far have spanned the greater California area, the state of Texas, the Pacific Northwest, the south, the Metropolitan New York City area, and the metropolitan Washington, DC area.
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?
- USCIS Response: USCIS does not have the necessary resources to reach out to LEAs on specific cases and does not intervene on behalf of individual petitioners. As mentioned above, we have been conducting training in this area. If a law enforcement agency has a question or concern regarding the U-visa in general or the certification specifically, the LEA may reach out to the local USCIS office for more information.
6. Processing Times - Will USCIS begin to post the processing times for Form I-918 on the website?
- USCIS Response: USCIS will be posting processing times in the near future.
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?
- USCIS Response: Individuals previously granted deferred action through the U Interim Relief program remain eligible to file an I-765 to obtain/extend work authorization based on that deferred action grant. However, there is no legal basis for granting employment authorization to those petitioners with pending I-918s who were not previously granted deferred action.
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?
- USCIS Response: The petitioner must wait for his/her I-918 to be approved before filing for adjustment of status. There is no legal basis for adjustment of status prior to approval of the I-918. Furthermore, the rule that will allow adjustment of status based upon an approved I-918 is currently pending with the Office of Management and Budget.
9. Evidence Required - Can USCIS provide some guidance on what evidence is required to demonstrate “substantial mental or physical abuse"?
- USCIS Response: The supplementary information of Federal Register, Vol. 72, No. 179, published on September 17, 2007 indicates:
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?
- USCIS Response: The certifying agency must be a Federal, State, or local law enforcement agency, prosecutor, or authority, or Federal or State judge, that has responsibility for the investigation or prosecution, conviction or sentencing of the qualifying criminal activity of which the petitioner was a victim. This includes traditional law enforcement branches within the criminal justice system, and other agencies that have criminal investigative jurisdiction in their respective areas of expertise, such as the child protective services, Equal Employment Opportunity Commission, and Department of Labor. It is not possible to provide a comprehensive list of every agency that qualifies as a certifying agency.
11. Approvals and Denials - Do you have a number of the U-visa approvals/denials since the interim final rule was issued?
- USCIS Response: USCIS has begun issuing decisions on U petitions; however, specific statistics are not available at this time.
12. Current Processing Times - What are the current processing times?
- USCIS Response: USCIS will post this information in the near future.
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?
USCIS Response on October 17, 2008 – The Vermont Service Center (VSC) was following Headquarters policy, AFM Appendix 10-9, and local policy in applying 33-day response times for a request for Initial Evidence as required by the form instructions. However, HQ has agreed that 87 days may be given for requests involving the I-192 form and fee.
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?
USCIS Response on October 17, 2008 -- As of Oct. 1, 2008, a total of 11,687 petitions for U nonimmigrant status were pending for principal petitioners. Petitioners with complete petitions will be added to the wait list as necessary on a first-in basis. If filings are incomplete, a request for evidence will be issued.
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?
USCIS Response on October 17, 2008 -- The regulation states that the victim cannot refuse or fail to provide reasonably requested information/assistance. If the victim complies with any reasonable requests, s/he has met this requirement. To establish helpfulness, the regulation requires the victim to submit a certification from a law enforcement agency that affirms that the victim has been, is being, or is likely to be helpful to an investigation or prosecution of the qualifying criminal activity. USCIS would exclude from eligibility only those victims who, after initiating cooperation, refuse to provide continuing assistance when reasonably requested.
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.
USCIS Response on October 17, 2008 -- Generally not, as VSC will use the certificate provided in conjunction with the Interim Relief application. If there is a problem with the previous certificate, or if it is insufficient, the petitioner may be asked for a new one.
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?
USCIS Response on October 17, 2008 -- There is no provision for granting an advance parole travel document for petitioners who have pending I-918s.
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?
USCIS Response on October 17, 2008 -- Yes, a final rule has been drafted and is in the internal concurrence process.
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?
USCIS Response on October 17, 2008-- The rule extends the victim definition to include certain family members of incapacitated victims. Direct victims of qualifying crimes, under age 21, are considered to be incapacitated due to their status as a child. Family members who are recognized as indirect victims and, therefore, are eligible to apply for U nonimmigrant status as principal petitioners must meet all of the eligibility requirements that the direct victim would have had to meet in order to be accorded U nonimmigrant 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.
USCIS Response on October 17, 2008 -- If a T or U applicant is inadmissible for a ground that is not automatically waived by the T or U regulations, and an inadmissibility waiver and fee were not submitted, VSC will request that the applicant file such waiver.
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.
USCIS Response on October 17, 2008 -- If a petitioner cannot obtain a certification from a local law enforcement agency, s/he can attempt to obtain a certification from other individuals who would qualify as certifying officials, such as prosecutors, judges, or other authorities, that have responsibility for the investigation or prosecution of the qualifying criminal activities.
7. Statistics - When will USCIS publish statistics on the number of U-visa petitions pending, approved, and denied?
USCIS Response on October 17, 2008 -- Statistics will be published shortly.
8. Outreach - How does USCIS decide where to do its outreach to local law enforcement?
USCIS Response on October 17, 2008 -- The Office of Community Relations coordinates trainings based on requests from Community Relations Officers who are responsible for USCIS outreach.
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?
USCIS Response on October 17, 2008 -- Yes.