The following is a summary of the September 28, 2006 Refugee/Asylee product line conference call hosted by the Nebraska Service Center.

Transcription

1 P.O. Box Lincoln, NE The following is a summary of the September 28, 2006 Refugee/Asylee product line conference call hosted by the Nebraska Service Center. QUESTIONS/ANSWERS: Mailroom/data entry 1. I-485 clerical (?) problems: One CBO has noted continual problems over the past 6 months with failure to receive Notices of Action (when G-28s are submitted), clients not receiving fingerprint/biometrics appointment letters, etc. If there are continual problems with the contractor who provides these services (such as roll-back problems that seem to still occur and clerical problems mentioned above), what is the NSC doing to ensure these problems are not repeated? (An example of one of the latest problems is a case where one CBO s client received an I-485 rejection form letter indicating that the correct fee of $225 was not received and the incorrect money order was being returned, along with the entire application. However, the money order which WAS in the correct amount of $225 was NOT returned, and has not been cashed, indicating that the NSC clerk lost the money order.) Please describe the clerical process used by the NSC contractor to process fees, etc. Please note that fees are determined in large part by the computer system by form type and age of the applicant. If, for example, a child is only 13 filing an I-485 with a single check for both fingerprints and the I-485 application, the package must be rejected because the system will not allow the fingerprint fee. Should you feel that a rejection is made in error, please resubmit with a cover sheet in large type rejected in error, please see supervisor. 2. If an attorney prepares a response to a RFE for an application that s/he initially did not prepare and submits a G-28 for the first time with the RFE response, will the G-28 be inputted into the CIS system? Or, will a G-28 only be inputted if it is sent to the specified post office box for G-28 submissions? If a G-28 and receipt number are sent to the G-28 post office box (PO BOX 87172, Lincoln NE ), the G-28 for the case should be updated. If submitted with an RFE, the RFE and G-28 go directly to the file then on to the examiner. In this instance the G-28 sometimes misses updating.

2 Page 2 I Thank you very much for your expedited processing of two Refugee Travel Documents for our clients based on family emergencies. Both the clients were most grateful that their requests were expedited. Normal processing times are also arriving promptly. (three months). Thank you. Our officers have worked hard at achieving shorter processing times. 4. If an IJ grants asylum, but the government appeals the grant, so it is not a final decision, can the asylee be granted a refugee travel document while the appeal is still pending? An Asylum Granted decision is not considered final for 30 days. The Service has a 30 day filing window to file an appeal contesting the IJ decision. If the 30 days passes and an appeal has not been filed, a travel document may be issued. If the Service does file an appeal during that timeframe, a travel document CANNOT be issued until/unless the appeal is dismissed. 5. The I-131 instructions for refugee travel documents and re-entry permits still state that the old ¾ profile photos are required. (Page 4 of the 10/26/2005 edition instructions). Is this correct? This is NOT correct. Effective September 1, 2004, we started requiring full-frontal photos. We are in the process of changing the instructions on the form.unfortunately it is a long process. Information on the photo standards may be found on the USCIS website. The specific location is EADs 6. In view of the new EAD processing memos by USCIS, can you please change the suggested time frame for submitting an EAD renewal to 100 days rather than 90 days? The 7/28/2006 USCIS Public Notice states that EAD renewals should be submitted at least 100 days before expiration. NSC will accept I-765s filed up to 120 days prior to expiration of the current EAD card. 7. A member reports that recently the NSC denied an EAD on a Chinese asylum applicant who had received a recommended approval from the Asylum office in Chicago. The NSC denied the application because the approval was only 'recommended'. The asylum director confirmed with the attorney that he believes they should be entitled to EAD. Please give the legal basis for a denial of an EAD where approval is only recommended. Generally, a recommended approval is eligible to file for a C8 with filing fee, however if the applicant filed under A5 initial and did not pay a fee, we would deny.

3 Page 3 8. Asylees with I-485 adjustment of status applications pending apply for EADs, but their applications for EADs are rejected when they apply under category (c)(9). On the other hand, when they apply under category (a)(5), their applications are rejected as well stating that they have adjustment pending already. There are no provisions in the regulation addressing which category EAD asylee-adjustment applicant should apply under because they are adjusting under section 209 of the Act. Please advise which category they should use when they apply or what should be done to resolve this problem. If they have been granted asylum status, the applicant should be filing under A5 on the I-765 with appropriate fee. 9. A member reports that NSC recently denied an EAD to an asylum applicant in removal proceedings stating that he caused undue delay to his case because he had another removal hearing scheduled. The hearing that was scheduled was the merits hearing for the case, which is also not a "fast track" case. Can you please explain why the EAD would be denied for this reason? The clock days for this application are tracked by EOIR. The Service must reply on the information given to the officer by EOIR. This appears to be a problem with the Immigration Courts, however the Service is willing to review any documentation submitted in order to substantiate their claim. 10. EADs issued for refugees at entry: CIS (CBP) supposedly stopped issuance of EAD cards at airport entry for refugees due to concerns regarding outdated equipment used to produce the cards. Does the NSC issue those cards now for all refugees? What is the processing time, and are the cards mailed to the refugee or the refugee resettlement agency? Currently, the NSC is issuing the refugee EADs from designated Ports of Entry. Our current processing time is less than 30 days and the card is mailed to the address listed in Part 1 on the I-765 application. 730s 11. We know that only the principal applicant in a refugee case can file an I-730. However, we understand that some derivative adults are also processed as principals. Can you provide any suggestions on how we can determine if someone is a principal, before submitting the I- 730? Unless the applicant has a copy of his/her I-590 which indicates whether or not he or she is an RE-1 or if the port of entry annotates it on the I-94, there is no other way to determine who is the principal applicant. It might take discussion with the applicant to determine who qualified as the anchor or head of family for refugee status. 12. If an I-730 for a minor child of an applicant granted asylum in court is denied because the parent who files is not the principal applicant, and the denial comes beyond the two years

4 Page 4 following the grant of asylum, is there any remedy for the child? Following is a detailed example: See below. 13. A Wife and Husband were granted asylum in court (Wife was principal applicant). Husband immediately filed I-730 Petition for his young child from previous marriage. At that time, the I-730 should have been processed within a maximum of 195 days. However, the Husband was not getting any response. He submitted several inquiries, but had not received any response. Finally, more than two years later, Husband received a denial of his I-730 Petition because he was not the principal applicant in the asylum case. Within just one week of the denial, his Wife filed an I-730 Petition for her step-child, but it was then denied because the petition was not filed within two years of the Asylum grant. Meanwhile, the Child s biological mother died and the Child is left alone under care of her old grandmother. The Husband and Wife were acting pro-se and made a simple mistake by having the Husband to file the original and timely I-730 Petition. However, had the CIS processed the Husband s I730 petition timely, the Wife would have had an opportunity to file her petition for the Child within two years of the Asylum grant. Is there any exercise of discretion in this scenario to allow the Wife to file the I-730 and consider it timely based upon the original filing of the I-730 by the Husband? Answer 12/13: All humanitarian requests are handled on a case-by-case basis. We are unable to give a decision without the case before us. It is recommended that the case be filed with all pertinent documentation and we will make a decision based upon the information provided. 14. Many refugees from the Former Soviet Union have documents from their native country that have been written in two separate languages and names that vary slightly from one another. Before the breakup of the Soviet Union, all documents produced in each of the Soviet Republics were written in Russian. However, since the Soviet breakup, several of the newly independent States have stopped using Russian and are using languages native to their region. So, for example, an individual who was born in 1980 in Kiev Ukraine and given the name Nadezhda, as stated on her Russian language birth certificate, and then married in Kiev in 2000, has the name Nadiya on her Ukrainian language marriage certificate. Rarely, does any such individual have any one document that shows the use of both names, and very few individuals have any documents that include pictures. Thus the only way to relate the individual with the Russian language name to the individual with the Ukrainian language name is for the translator to state that the two names are variants of each other. In some instances the Service has accepted such statements from translators as part of a petition, while in others an RFE has been sent requesting additional documentation to show that the two names relate to the same person. Since no additional documentation is available, is it possible to establish a protocol to accept such translator's statements? The translator s duty is to translate what is on the document. Statements pertaining to information other than the content of the documents will not be considered. The petitioner or voluntary organization should let the issues be known right up front in some sort of addendum.

5 Page 5 However, the documentation submitted must provide evidence of the transition from one name to the next. 15. I-730s: Has a decision been made regarding the recognition of Colombian domestic partnerships as valid marriages for I-730 purposes? (This issue was raised in the 6/29/06 teleconference with reference to a pending I-730; the teleconference answer was incorrect since the referenced case is actually still pending at NSC.) We have some pending at this time. Our legal counsel is reviewing the issues and corresponding with Colombia to review the law. To assure that this case is one of them, please provide the LIN receipt number. 16. I-730s: Some CBOs have gotten RFE letters that indicate the petitioner has failed to list his/her beneficiary on a prior immigration application (i.e., the I-590, I-589, and/or I-485) when the beneficiary is a stepchild, not a biological child. None of these prior applications indicate that stepchildren (along with biological children) should be listed, so most applicants do not list stepchildren, although some CBOs err on the side of listing these children on I-485s. Why should an I-730 examiner even ask this in a RFE letter? An RFE is completed because some children are listed and some are not. The form does not differentiate between step or biological children. It merely instructs the applicant to list all children. An additional reason for the RFE is that different information is needed for different types of children. In the RFE we will ask for specific documentation to establish the relationship according to immigration law. 17. We have a client who is a refugee of the Democratic Republic of Congo who wishes to bring his wife to the U.S. We are in the process of preparing an I-730 petition. Unfortunately, their marriage certificate and any other relevant documents that show proof of marriage (which took place in Congo) were all lost or destroyed when my client s home was invaded before he fled his country. In the Q&A from the NSC teleconference from February of this year, the NSC indicates that adjudicators rely heavily on the Foreign Affairs Manual when determining what documents are required as evidence of the relationship. The FAM Visa Reciprocity Schedule for the Democratic Republic of Congo shows that marriage certificates are available, although the 2005 State Department Country Report on Human Rights practices shows that government control of the country remains weak and that the human rights record remains poor, including numerous unlawful killings by security forces, arbitrary arrest and judicial corruption. It seems as though it is impossible for the petitioner to acquire legal evidence of his marriage. If the only legal evidence of the marriage has been destroyed and there is no way for the petitioner to obtain replacement of the evidence, how open will the NSC be to accepting affidavits and secondary evidence as proof of the marriage? A majority of I-730s are accompanied by documents. While it is unfortunate that the documents were destroyed at the house, replacement documents should be available from the civil authority in the prospective country. 18. I-730: The processing date listed as of 9/21/06 for these applications is 12/26/05. This seems to be a change for the worse as the processing times seemed to have improved to six or

6 Page 6 seven months fairly recently. Can you please let us know what we can expect in the coming months. What is the mandated time frame for I-730 cases? Actual processing dates fluctuate due to cases pending for security checks (fingerprints and name checks), removal of conditions for Chinese Coerced Population Cases, and biometrics for beneficiaries in the United States. We adjudicate these cases as soon as results are received and they might not be in chronological order. 19. I-730 and I-485 petitions pending at the same time: Please describe the procedure followed when there are two petitions (i.e., I-730 and I-485) pending at the same time with two separate examiners at NSC. Does review of one petition get delayed until the other is resolved? Once a decision has been made in one case, is there a tickler system so that the A file will be sent to the other examiner handling the second pending application? Is it important for the CBO that files an I-485 to flag the fact that a previously filed I-730 is still pending? What files do NOT require the review of the A file in order to make a decision I-131 RTD and/or I- 765c(9) applications? At the time of adjudication, the I-485 adjudications officer will have the applicant s A file and will check to see if the applicant has a valid asylum or refugee status before adjudicating. If the applicant has no status, then the officer may deny the I-485 application. Also, there is a one year physical presence in the US requirement for adjustment of asylees and refugees that must be met or their I-485 applications will be denied. In most instances, we work the I-730 first and return the I-485 back to its original processing section. We have a particular workflow distribution system to return the petition to the next step in processing. 485s 20. If a refugee/asylee child is likely to turn 14 between the time that an I-485 application is filed and is adjudicated, should the $70 biometrics fee be included with the initial I-485 filing? Or will the NSC send an RFE requesting it if the case is not adjudicated by the time the child turns 14? The fees should be appropriate for the applicants age at the time of filing. Since our computer system will not allow the $70 biometric fee for an applicant less than 14 years of age, the $70 check will be returned if it is a separate check or the I-485 will be returned for improper fee if there is one check for both application and biometrics. Please consider these examples/address them in your response: Ex #1: A child will be 14 on Sept. 30, 2006, but the I-485 application was mailed/received by the NSC on Sept. 29, Should the biometrics fee be included? Ex #2: A child will turn 14 three months after the I-485 application is mailed/received by the NSC.

7 Page 7 Ex #1: If an applicant is within one day of turning 14, suggest waiting an additional day to send the application to NSC and include the $70 biometric fees. The computer will accept the correct fees based on the applicant s age at the time of receipting. Ex #2: Do not submit biometric fee in this case because the application will be entered in the computer system while the applicant is 13 and the computer will not allow receipt of the biometric fees. If the application is adjudicated after the child turns 14, the applicant will receive notification to submit the $70 biometric fee when appearing at the ASC for biometric capturing. 21. Is there an upper age limit for the biometrics fee for asylee/refugee adjustment applicants? The USCIS website states that for asylee/refugee adjustment applicants all individuals 14 and over must include the biometrics fee. The instructions on the actual I-485 form state that the biometrics fee is only for individuals aged Please confirm that asylee/refugee adjustment applicants who are over 79 are not required to include the biometrics fee. A biometric fee is required for applicants age 14 through age 79. If an applicant is 13 years of age or younger or 80 years of age or older, no biometric fee is required. 22. Please confirm that only asylee/refugee I-485 applicants between 14 and 79 need to submit the G-325A. The information on the website regarding this matter is confusing. Asylee/Refugee I-485 applicants between 14 and 79 are required to submit the G- 325A per the general filing requirements for all I-485 applications. 23. I-485 FBI Name Check issues: This issue was mentioned in the 5/25/06 teleconference. Please provide an update on the number of I-485 cases being delayed due to FBI Name Checks that have not been completed. One CBO has a number of Afghani and Iraqi male clients whose I-485s have been delayed for more than 2 years due to non-completion of the FBI Name Checks, and the CBO is also seeing more and more I-485 cases delayed for the same reason for these same groups of clients (Afghani and Iraqi males). This question should be directed to Headquarters. 24. For many applications the applicants no longer have to submit passport style photos since their digital photos are taken during the biometrics appointment. Do refugees and asylees still need to submit photos with their I-485s? Photos do not need to be submitted by refugee or asylee applicants if their digital photos were taken during their biometrics appointment. 25. Please provide an update on the I-485 cases that have been held in abeyance due to material support issues. (Discussed at #16, 5/25/06 NSC teleconference.) How can a CBO or applicant find out whether the delay in an I-485 case is due to this issue?

8 Page 8 Contact with NSC CCS will allow an applicant to find out if there is a delay in their I- 485 case due to security issues. 485 Asylee 26. Thank you for all the updated information on the USCIS website concerning processing times for asylee adjustment. Can you provide any update or changes on asylee adjustment processing including the processing times. The USCIS website provides the most current information on asylee adjustment processing. 27. If an I-485 based on asylum status is denied because of failure to obtain fingerprints and the client had a proper address and did not receive the fingerprint notice, what is the policy and procedures for requesting that the case be reopened. The applicant may file a motion to reopen and submit an explanation and evidence to support the request. 28. AILA members report that when the NSC transfers an asylee adjustment to another office for processing, it notifies the client, but not the attorney. This causes problems because many asylees hire attorneys to have a back-up for their mail, because they move frequently or live in areas where the mail is stolen, etc. Since the NSC sends copies of all other correspondence to the attorneys, is there also a way to ensure that this correspondence of transfer is also sent to the attorneys? We are not aware of a systemic problem with transfer notices not printing for attorneys. We will investigate our computer process to determine how this problem occurred. This is the first indication we ve received of a problem in this area and we thank you for the question. 29. What does it mean when an asylee adjustment case is transferred from NSC to the Texas Service Center? Which priority date is the relevant date - the one issued by NSC or the one issued subsequently by TSC? Example: a case for an applicant that resides in California, and was originally with the NSC is transferred to the Texas Service Center. The NSC had passed the applicant's priority date for processing, but the new date issued by TSC is backlogged by at least 2 years. As part of the bi-specialization effort, I-485 asylee adjustment cases were transferred from NSC to the Texas Service Center. The relevant priority date is the one issued by NSC. Please note that with the elimination of the visa availability requirement for an asylee, the priority date is no longer critical to the date of the applicant s adjustment. The asylee s adjustment date will be set at one year prior to the date of adjustment approval. 30. When an I-485 case is sent to a CIS Asylum office for processing of a nunc pro tunc interview and the I-589 is then approved, what steps (if any) does NSC take to ensure that the file is returned to the NSC by the Asylum Unit so that NSC can then resolve the I-485 case? Is it entirely the responsibility of the Asylum Unit to ensure responsibility of the file? Does NSC and/or the Asylum Unit utilize a tickler system that ensures the file is sent back to NSC instead of (incorrectly) to the NRC?

9 Page 9 The NSC correspondence to USCIS Asylum offices clearly states that upon approval of a nunc pro tunc asylum grant, the Asylum office is to return the applicant s A File to the NSC to complete adjudication of the I-485 Asylum adjustment. It is entirely the responsibility of the USCIS Asylum office to review the nunc pro tunc asylum application and to return it to the NSC if the approval is granted. The NSC does not utilize a tickler system to track USCIS Asylum office nunc pro tunc approvals. 31. Under what circumstances other than a nunc pro tunc situation does the NSC return a file to a CIS Asylum Unit? (One CBO had an I-485 asylee case sent to an asylum office after a response to a RFE from the NSC indicated that the I-485 applicant had no proof of his initial entry into the U.S. on a B1-B2 visa he had lost his original I-94, although the CIS computer did have a DOE.) Why should an asylee (either direct or derivative) have to prove anything regarding initial admittance or entry into the U.S.? That may be required for other adjustment applicants, but appears irrelevant for asylees and would have been an issue at the I-589 interview stage. NSC will return an asylee s A File to an Asylum Office when there are indications that the asylum grant should be reviewed for possible termination. An asylee (either direct or derivative) during the adjustment to lawful permanent resident is examined for all inadmissibilities under the INA. See INA Sec 209 (a). How an asylee entered the United States is addressed during the I-589 interview stage, however, it is not an issue that would lead to an asylum denial. 485 Refugee 32. I-485 Class B issues: When a refugee has his/her medical exam overseas and the civil surgeon notes a Class B condition, certain of those conditions (like forms of TB and infectious syphilis) then delay the entry of the refugee until s/he completes the medical treatment required for entry. Once the treatment has been completed, the civil surgeon then prepares forms that indicate the treatment has been completed and that, for example, the applicant no longer has infectious syphilis, but generally the original medical form is not changed to delete the Class B check mark. One CBO has gotten strange RFE letters asking the I-485 applicant to repeat these tests in the U.S., even though the Class B condition was basically resolved prior to entry. Please clarify I-485 policies when Class B conditions have been resolved prior to entry. The officer will review the documentation in the file to ensure that an applicant who has a Class B medical condition that requires follow-up treatment after admission into the Untied States receives such treatment. The Adjudicator s Field Manual provides the following guidance: Furthermore, if the refugee obtained a waiver of inadmissibility on medical grounds which are required follow-up action after the refugee s arrival in the U.S., it is imperative that before granting adjustment of status you verify that the refugee complied with such follow-up requirements. For example, if a refugee suffering from tuberculosis received a waiver which required that he or she received treatment through his or her county health department, he or she should be required to submit a letter from that health department verifying that he or she has complied (or is complying) with such requirements.

10 Page If a refugee does not understand/know that s/he was admitted to the U.S. with medical grounds of inadmissibility, and files the I-485 without the I-693 and I-693 supplemental, will they later receive an RFE (before a denial) asking them to file the I-693 and supplemental? Yes. The applicant will be requested to submit evidence that he/she has received follow-up treatment for a medical condition that may be grounds of inadmissibility. 34. There used to be a form that was submitted with the refugee I-485s that was completed by hand and it contained information about the refugee's initial I-94, first address, current address, and names of parents. The instructions on the form indicate that it's for refugees only in order to facilitate locating their file. Does this form still need to be submitted with refugee I- 485s? If so, is there an updated form, the most recent one I've seen still says "Immigration and Naturalization Service" at the top. We are unable to speculate as to what form you re referring to. If this form is not listed on the instructions regarding the filing of an I-485 Refugee application, do not submit. Extra 35. In the context of an asylee following to join, should a misrepresentation concerning parentage by a derivative spouse, non-biological step-parent to the petitioner's children, be attributed by the consulate as a bar to admission under both 212(a)(6)(c)(i) for fraud, and 212(a)(6)(E) for smuggling. There is a waiver for the former, not the latter, and the smuggling ground appears inappropriate and contrary to reuniting families that have been persecuted. The petitioner was reunited with 3 other children but not the spouse and the child subject of the "smuggling" ground. In reviewing the follow to join regulations under Section 207, it does not appear that the beneficiary is subject under the above inadmissibility cites. NSC has not seen any consular returns based on the above inadmissibility issues. 36. What procedure should be followed, where a consulate returns an I-730 to NSC for revocation, the NSC re-approves it and forwards it back to the Post, to confirm that the Post has received the re-approved file and will schedule visa applicant for another interview. Post in Addis indicates they have not received any re-approved file. All reaffirmations are returned to post via NVC. In the event NVC indicates that post has not received a consular return, we would notify the petitioner to submit a duplicate to NSC to be returned to post for processing. Respectfully submitted,

11 Page 11 F. Gerard Heinauer Acting Director