CIS Ombudsman Updates

These periodic updates will share information on current trends and issues to assist individuals and employers in resolving problems with USCIS.

Pending Derivative Form I-485s Due to File Separation Updated 11/6/2009

Do you know of a situation where USCIS approved the Form I-485 (Application to Register Permanent Residence or Adjust Status) for a principal applicant, but the derivative family members' (spouse or minor children) Form I-485 applications remain pending? While in some cases this may be due to missing evidence, security clearance difficulties, or some other legitimate reason, the file may just be separated from the principal's.

If a family member's derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant's Form I-485, please submit to cisombudsman.publicaffairs@dhs.gov:

• DHS Form 7001,
• A copy of the principal applicant's Form I-485 approval notice,
• A copy of the Form I-485 receipt notice for the derivative,
• A copy of the approved immigrant visa petition notice (if employment-based), and
• Any other evidence that is pertinent to the case.

In your email, please note in the subject line: "Unapproved Derivative I-485."

We will look into your case and review how we may be of assistance.

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AC21 Issues: Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment?

The Ombudsman has received inquiries noting that USCIS is not issuing Notices of  Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.  Does this apply to you?

If a foreign national is:  (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has a Form I-485 pending for 180 days or more, s/he is eligible to change to a same or similar position.  If the underlying, approved Form I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then, USCIS must issue a Notice of Intent to Deny the pending Form I-485.

However, the Ombudsman understands that USCIS may deny the Form I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances.  These include, for example, where the beneficiary is ineligible for the benefits of the Form I-485 by statute, or the Form I-140 is withdrawn before the Form I-485 was pending for 180 days.

Do you think your case was erroneously denied?  Then please forward the CIS Ombudsman a case problem using DHS Form 7001 with the subject line “AC21 Evidence of Immediate Denial.”  Include a copy of your denial notice, detailed information as to the reasons for the immediate denial, and, if appropriate, evidence that you submitted a Motion to Reopen or Reconsider.  If we consider your case to be an erroneous denial, we will forward it directly to USCIS for further review.

Below are some links to further clarify USCIS processing of these cases:

• USCIS Interoffice Memorandum – May 30, 2008 (PDF, 18 pages - 138 KB)
• USCIS Interoffice Memorandum – December 27, 2005 (PDF, 8 pages - 94 KB)
• USCIS Interoffice Memorandum – May 12, 2005 (PDF, 12 pages - 292 KB)
• USCIS Interoffice Memorandum – August 4, 2003 (PDF, 5 pages - 159 KB)
• American Competitiveness in the Twenty-first Century Act of 2000, Public Law 106-313
• May 2008 CIS Ombudsman Teleconference: “USCIS Summer 2007 Application Surge: How Is It Affecting You Now?”  Question #5

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Child Status Protection Act: Was your child previously denied CSPA benefits? Does your child qualify?

The Child Status Protection Act (CSPA), signed into law on August 6, 2002, permits applicants for certain immigration benefits to keep their classification as a "child" even after reaching age 21.

In 2007, the Board of Immigration Appeals held that children did not need to have Form I-485s (Application to Register Permanent Residence or Adjust Status) or immigrant visa applications pending on August 6, 2002 to benefit from CSPA, contrary to prior USCIS interpretation. (In re Rodolfo Avila-Perez, 24 I&N Dec. 78 (BIA 2007))(PDF, 9 pages - 53 KB)

USCIS revised its guidance in May 2008 and now applies CSPA benefits retroactively.

• Was your "child" denied because s/he no longer met USCIS' definition of a "child"?
• Did your child become 21 years old or older while the application for permanent residency was pending?

If you answered yes to either question above, CSPA may provide "child" status protection. Note: If your child married, CSPA may not provide "child" status protection.

To determine your child's CSPA age, review the USCIS CSPA Fact Sheet (PDF, 3 pages - 40 KB).

If your child was previously denied Adjustment of Status solely based on a finding that s/he no longer met USCIS' definition of "child," you may file a motion to reopen without fee at any time to your local USCIS office.

To learn more about CSPA, review the USCIS CSPA Fact Sheet (PDF, 3 pages - 40 KB).

For all other inquiries, please submit DHS Form 7001 to our office.

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2007 Summer Surge A Year Later: Employment Authorization Document (EAD) Processing Delays

Pursuant to 8 CFR § 274a.13, USCIS must adjudicate EAD applications within 90 days from the date of USCIS receipt of the application.

The CIS Ombudsman has been receiving numerous inquiries from customers about EAD applications pending more than 90 days.  Do you have this concern?  Then, see our suggestions below:

Step 1: Call USCIS National Customer Service Center (NCSC) at 1-(800) 375-5283 and record the time/date of the call and the name/number of the customer service representative:

• Explain to the customer service representative that your EAD has been pending more than 90 days and ask for a “service request.” You should receive a response to your service request within a week.

OR

• Ask the customer service representative to request an interim card for you.  You should receive an EAD or response within a week.

Step 2: If you choose to visit a local USCIS office, schedule an INFOPASS appointment to visit that office on www.infopass.uscis.gov. At the appointment, ask to apply for an interim EAD. Note that USCIS local offices no longer issue interim EADs. The local office can review your case and determine eligibility. The local office will forward your request to the USCIS service centers. You should receive an EAD or response within a week.

Step 3: If you have tried both Step 1 and Step 2 and have still not received your EAD or an interim card, please email our office at cisombudsman.publicaffairs@dhs.gov with the details of your efforts.  Please include the date and time of your call to the NCSC and the name of the customer service representative.  If you visited a USCIS office, please provide that information. We will look into your case and review how we may be of assistance.   

For all other case inquiries, please submit DHS Form 7001 to our office.

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