> Minutes of AILA-VSC Liaison Teleconference of March 1, 2006

TELECONFERENCE
AILA VSC LIASION COMMITTEE
AND VERMONT SERVICE CENTER
March 1, 2006

1. Processing of Schedule A cases during retrogression. In the California Service Center liaison minutes, there was a discussion recently about Schedule A cases. The receipt notice is supposed to designate them as EX because they are in a special category for retrogression. Is VSC following this? What is the best way to correct a receipt notice that does not show EX? As you can imagine, attorneys worry that a Schedule A nurse or Exceptional Ability case will be placed on a retrogression shelf - would you be able to explain the procedures for identifying and separating these cases?


As we understand the notices and CLAIMS system, neither the receipt notice nor the approval should reflect the EX classification. The information on the receipt/approval notice is printed as a result of information entered into a particular field in CLAIMS. In Schedule A cases, the field selected is "Professional or a skilled worker". There is no distinction between Schedule A cases and non-Schedule A cases in this field.

When the petition is approved, we assign the EX classification to Schedule A cases in a separate field in CLAIMS. It is noted, however, that this field does not populate the information onto the approval notice.

Thus, receipt and approval notices issued for Schedule A cases should only show the beneficiary as a "Professional or a skilled worker". It is our understanding that CLAIMS does not have technical capability to issue receipt/approval notices reflecting the EX classification.

All I-140's that indicate a category that require a Labor Certification are screened and the Schedule A cases are pulled out and sent to a special group that works these cases. In addition, we perform electronic scrapes of the I-485 Visa Hold shelf (shelf that houses visa regressed cases) weekly looking for any Schedule A cases that may have been put there by error.

2. IV petitions returned by consular post to VSC. This is a follow-up to the question from the September minutes regarding cases returned to VSC from a consular post. In cases where an I-130 petition is returned from the consulate to the VSC for revocation (either due to death of the petitioner or questions of marriage validity), it is difficult for members to track the status of the case. The only information in the CSR system is the initial approval date. This has occurred more than once. Members report that Information Officers are not able to get information on their screen for cases already approved. Do you have any advice for members in this situation? How long should one wait for notification from VSC before seeking liaison assistance to track a case down?

We continue to work on establishing a workflow process and reporting mechanism that results in the petitioner/attorney being aware of the petition's return and the publishing of our current processing time for these cases. Unfortunately, to date, we have not finalized such a process.

We have sorted through the I-130 consular returns and taken action on those cases in which an automatic revocation is appropriate. The remaining cases at the VSC are cases that will require a close look at the issues and application of discretion by the adjudicator.

The VSC IIO's do have access to our local file tracking database. At the very least, they can verify if the case has been returned to the VSC. The customer service representatives at the NCSC do not have access to said database.

Once we have established a workflow process and reporting mechanism, we will pass this information along to AILA. Until such time, we will entertain status inquiries via referral from the NCSC.

AILA COMMITTEE COMMENT: It was indicated that the workflow process and reporting mechanism would hopefully be finalized very soon. No such reporting processes or mechanism is currently anticipated for other products such as I-751's or N-400's.

3. I-140s sent to NYC office for review. Several liaison inquiries found that employment-based AOS applications had been sent to NYC for "quality control." New York City has now returned them to VSC due to their backlog. Would you please update us on those cases transferred from NYC District Office to VSC?

During the months of November and December of 2005, the VSC took back 10,000 employment based (EB) I-485s from the NYC District Office and 7,000 EB I-485s from the WAS District Office. These cases were originally sent to the District Office because the applicant did not meet interview waiver criteria based on the August 14, 2002 Interview Waiver Criteria Memo.

However, the interview waiver criteria memo was revised and reissued on January 5, 2005. As part of the CIS backlog reduction effort, it was decided that the work located specifically at NYC and WAS would be returned to VSC for additional review based on the revised interview criteria. It is expected that the majority of these cases can now be worked to completion without an interview.

However, a certain percentage of the cases sent back to the VSC may still require an interview. Some of the cases falling into that scenario have already been identified and sent back to their respective District Offices for an interview. Others are expected to follow over the next few months.

The I-485 EB cases that can be waived an interview will be adjudicated to completion, once a visa becomes available, by a special team of I-485 adjudicators at the VSC.

AILA COMMITTEE COMMENT: The Committee notes that some districts such as New York already have received a substantial number of these applications for interview.

4. Attorney Change of Addresses. These have been problematic. New Forms G-28 have been filed with the VSC at Box 600, and the changes have been made through the DHS phone assistance system. Despite all attempts, information can still be sent to the wrong address. This situation is more problematic with VAWA cases, where no information will be given out by phone. Please confirm that sending a G-28 to Box 600 is the correct procedure, and please let us know if there are suggestions for attorneys to make this process move more accurately.

We would like to express our appreciation for your efforts in this area. There were cases reported where address change information was not entered in the file, forwarding notices by the post office have expired, and VSC has resent the letter to the new address listed on the forwarding sticker from the post office.

Historically, we have required such changes be made through the NCSC. We will now entertain requests for attorney address changes at PO Box 600. Attorneys should make sure that they include a letter explaining the updated G-28 is being sent to effect an attorney address change.

PO Box 600 should not be used for status inquiries, requesting duplicate notices, applicant/petitioner address changes or to address any other issues beyond those set forth above. Using this address for any other issues other than those set forth above will result in a delay in processing the inquiry.

5.Clarification of G-28 policy. As a follow-up to Question 4, would you please restate your G-28 policy for the benefit of our members, many of whom are new. We do get numerous reports of G-28s not be entered, and attorneys not receiving their courtesy copies. From VSC point of view, what are the most common problems with G-28s submitted? We appreciate your patience on this issue, and that many attorneys do make mistakes on G-28s. Restating the policy and issues will be useful for everyone.

The most common problems we see are usually a result of the form not being completed properly. The form should include information regarding the individual representative (as opposed to a firm) and should be signed by the affected party (e.g. petitioner or applicant). We offer the following reminders to avoid problems that we see on a regular basis:

G-28 should be signed by an affected party (e.g. petitioner/applicant).
G-28 should not be signed by an unaffected party (e.g. beneficiary).
G-28's should be signed in the original; do not submit photocopies.
Attorney/representative should check the appropriate block and complete the middle section of the form that includes information that assists CIS in determining if he/she should be recognized under 8 CFR 292.
The attorney/representative should print his/her name in pertinent block.
The attorney/representative should be an individual, not a law firm or organization.
A separate G-28 should be included for each respective filing by a petitioner/applicant.
Only one attorney should be listed on the G-28.
A few examples reported by members as part of the call for questions for this teleconference: ESC001532896 N-400 client got receipt & fingerprint notice, attorney did not get either. EAC0415753874 EB-3 transfer notice: Client received; Attorney did not. EAC 0606752201, 52221, 52241 I-485s for a family, attorney received, client did not. I-765 receipts; EAC 0606752278, 52292, 52259, attorney received, client did not.

We are looking into the N-400 case and the EB3 transfer notice. The only notice issued by our office on the other six cases were receipt notices and receipt notices only go to the attorney.

Of particular concern are I-751 receipts not received. We see what may be a pattern over the past 2-3 months of I-751 receipts not sent. Since the receipt is the document that extends the alien's status, the attorney has to find the cancelled check and send the client in for an INFOPASS appointment when the receipt does not come. Examples: EAC-06-005-00127; I-751 Received Date: 10/3/05; A79-681-692; EAC-05-047-00040; I-751 Received Date: 9/08/05; A96-408-457. Would it be appropriate to fax the expedite line with a copy of the cancelled check where an I-751 receipt has not been received after a certain period of time (45 days?), and if NCSC has been unable to resolve the problem?

If you do not receive a receipt notice for the I-751 filing, you should contact the NCSC. If the NCSC is unable to resolve this matter, they will refer the problem to the appropriate Service Center. Upon receipt of the referral by the Service Center it will be processed within 30 days. A fax to the expedite line should only be used if it meets the criteria for an expedite request.

AILA COMMITTEE COMMENT: Reminder! Avoid using black ink. Make it easy for the Center to see that the signatures on the G-28 and other petitions are original.

6.Portability of job offer for I-485 applicants in immigration proceedings. The BIA has ruled that Immigration Judges cannot determine if the job the employee has ported to qualifies. Have there been any discussions about how VSC might be able to evaluate the "port" issue for I-485 cases for aliens in proceedings?

VSC has not been informed of a standard operating procedure having been implemented as a result of the BIA ruling referenced in the question. Further, we have not seen any cases make their way back to the VSC for evaluation of one's eligibility to port under 204(j).

7.I-485 filing for dependent when visa numbers have retrogressed. When an I-485 case is retrogressed and the foreign national is married, will an I-485 filed on behalf of the spouse be accepted, or is it necessary to wait for the priority date for the principal applicant to become current before filing for the derivative spouse?

It will be necessary to wait for the priority date for the principal applicant to become current before filing for the derivative spouse.

8.Change of address for I-485 dependents. Would you please clarify your position on changes of address for I-485 dependents. Here are two examples:

a. I-485s are filed by wife as the principal and her husband while they live in Maine. While the I-485s are pending, husband gets a job in his field in Texas, and they have a commuting marriage for a while. Their address for tax purposes is in Maine, and he visits her when he can. Should he file an AR-11 to change his address to Texas, and file EAD/AP renewals with the Texas address? Is there a chance his I-485 will be separated and moved to TSC?

b. I-485s are filed by family. One child goes to college in another state. Should the child file an AR-11, even though she is only there 9 months per year? Can she still use her parents' address?

We realize these issues have been discussed before, but as commuting marriages are even more common, we wish to clarify the policy for our members. Our response is broken down into two sections:

1. I-485 mailing address:

All I-485 adjustment decisions will depend upon the principal applicant's I-485. As a means to streamline the receipt of documents and reduce the chance that the family be split up, the dependent may choose to continue to use the principal applicant's address as his/her mailing address. If the entire family's address remains the same, the cases should not be separated from one another.

If a change of address occurs that places the principal applicant's case in another office's jurisdiction, the principal applicant may request to have his case and family member cases transferred. It would not automatically be transferred because of the change of address.

All related I-131s and I-765s should be filed at the office where the I-485 applications remain pending.

2. AR11's:

Those subject to notifying CIS of their change of address under Section 265 must do so via the filing of an AR11.

9.Processing backlogs for H-1Bs, I-140s and I-612s (hardship and persecution). VSC is no longer accepting new H-1B visa petitions. However, it is taking a long time to process extensions and change of employer petitions. The waiting times listed on the processing time report are quite long. Can you give us any update on backlog reduction efforts in this area, particularly given that we expect a surge of filings on April 1, 2006 for the FY 2007 numbers?

We have recently trained additional officers on the adjudication of Forms I-129 and I-539. The backlog of these cases, I-129 extensions in particular, has been decreasing in recent months. We expect to be in a position to handle the surge of filings beginning April 1, 2006.

In addition, according to the processing time reports, processing of I-140 petitions is slowing down significantly. We understand that the processing times may not move forward for quite some time due to many petitions being filed in late summer and early fall, but why are the processing times falling back? Has the VSC been sent old cases from some other service center?

The Vermont Service Center has not received any I-140s from other offices; however, we have received some other relocated work, I-485s in particular. In addition, we have lost officer resources from the I-140/I-485 group to details in other CIS offices.

Lastly, we note that I-612 processing for hardship and persecution cases has been slow. Could you also comment on processing times for these cases? It appears that delays are mostly before DOS recommendations are received. We realize that these waivers are labor intensive - however, the applicants are often in very tough situations.

We are in the process of increasing the resources to handle these cases. The adjudication of these cases is also affected by our ability to obtain applicants' A-files in a timely manner.

9.What will the VSC accept when the alien and/or attorney indicate they never received a call-in notice/RFE/ or other communication from the VSC in order to receive a duplicate document without need for an I-824 together with an application fee? Why will not an affidavit of counsel be sufficient?

VSC does not require the filing of an I-824 to issue a duplicate copy of an RFE, intent to deny, intent to revoke, revocation or denial notice. Requests for copies of these decisions should be made to the VSC via a referral to the 1-800 National Customer Service Center.

Although call-in notices are referenced in the question, they do not seem to apply to the VSC.

CIS requires the filing of an I-824 when the original approval notice was sent to the proper address and the applicant/petitioner/attorney is seeking a duplicate approval notice be issued.

10.The standard for "brief trips for business or pleasure" pursuant to 8 CFR 214.2(h)(13)(iii)(A).

Individual was in US in H-1B status for approximately 4 years. He then went abroad for approximately 18 months except for one six-week period when he entered the US in B-1 status at the request of his foreign employer. Less than one year after the B-1 visit he returned to the US in L-1 status but converted to H-1B status the following year. He was granted H-1B visa status for a three-year period. After approximately two years in the US he sought to change to a different employer. This prospective employer filed an I-129 H-1B petition but it was denied on the basis that "it cannot be determined that the beneficiary resided and was physically present outside the US, except for brief trips for business or pleasure, for the immediate year prior to his readmission on October 28, 2003."

Does the VSC have any standard for what is a "brief" trip? Six weeks does not seem to be unduly long, especially considering that he was out of the US for a combined total of approximately 18 months - far more than the minimum one-year period.

The adjudicator who reviewed the petition for a change from L-1 to H-1B visa status clearly was not concerned by the six-week trip. He/she approved a full three-year term, presumably because he/she believed the absence from the US permitted the six-year limit to start running again.

What if an individual came to the US in H-1B visa status as a research scientist for six years and then went home to work for a foreign company. That company sends him to the US for six weeks of training and conferences with his counterparts at the US affiliate's research center each year. If VSC thinks that six weeks is not "brief", then conceivably this individual could never again obtain an H-1B or L-1 visa because he would never reside and be physically present outside the US for the immediate year prior to readmission.

The VSC does not have a standard for what a "brief trip" is. Since the term is not defined in statute, regulation or policy, it is within an officer's discretion to decide if a six-week business trip is a brief trip, as described in 8 CFR 214.2(h)(13)(i) and (iii) and 8 CFR 214.2(l)(12)(i). Your example suggests an inconsistent use of discretion since the change of status portion of the beneficiary's second H1B petition was approved for three years and yet the portion of the beneficiary's third H1B petition requesting an extension of stay was denied. While this may be the case, it is also possible that the first officer's decision was an error or was based on incomplete knowledge and understanding of the facts and relevant regulation.

With regard to your hypothetical scenario, your conclusion appears correct. However, a company could avoid such an undesirable result in number of ways. The training and conferences could be scheduled two weeks at a time and entail three "brief trips" on the part of the individual. Alternatively, the training and conferences could be scheduled to commence six weeks later to coincide with the individual's reentry into the United States as a new H1B, after a full year of physical presence abroad.

11.New Filing Fees for MTRs. The VSC appears to be taking the position that all motions to reopen require the new fee of $385. Some members believe there is a good argument that the fee increase should only apply to MTR's that fall under the appellate jurisdiction of the AAO. The Final Rule, as published in the Federal Register, Vol. 70, No. 166, Monday Aug. 29, 2005 states: "this rule adjusts the fee for filing appeals of, and motions to reopen or reconsider, any decision under the immigration laws in any type of proceeding other than those described at 8 CFR 1003.1(b) over which the Board of Immigration Appeals (BIA) in the Dept. of Justice (DOJ) has appellate jurisdiction." Then, "This rule applies to fees for appeals and motions relating to the types of cases under the jurisdiction of the AAO." A member recently filed two MTR's on two I-130 denials. The BIA has appellate jurisdiction over I-130 decisions. She paid $110 for each and the packages were sent back to me. She called and learned that VSC is taking the position that all MTRs cost $385, regardless of whether AAO or BIA has appellate jurisdiction. An appeal to the AAO, on the other hand, has been raised to $385, in line with a MTR.

Could you comment on VSC policy regarding the MTR fees, both for cases going to AAP, and for cases over which BIA has jurisdiction?

HQ guidance was sought and received by the VSC on this topic. We have been informed that the motion fee on any case where the Service Center had made the most recent decision should be $385. The motion fee on cases where the BIA made the most recent decision remains at $110.

Please note that the regulatory text effected by the final rule does not distinguish between cases appealable to the AAO/BIA when setting the filing fee at $385.

12.Security check delays for Naturalization cases. There are many Naturalization cases that have been pending far outside of normal processing times due to "security check." What is being done to move these cases that are so far outside processing times along? You had advised previously that new procedures were being considered to address this problem. How long after a case was filed should the attorney follow up (1 year, 18 months, etc.)?

VSC has performed a physical review of all N-400 filings that were filed prior to March 2005 and are still at our office. Any case that was found to be in need of fingerprint results were scheduled into the ASC's for fingerprinting.

VSC has identified a limited number of cases within the Boston, Newark, Washington DC, and NYC district office jurisdiction that were not being scheduled for fingerprints through the national scheduler. We have been informed that the system has recently been fixed and fingerprint notices are in the process of being sent to affected individuals. VSC is monitoring these cases closely to ensure the cases are not further delayed.

The lack of an FBI name/DOB check will not generally keep an N-400 from being relocated to the district office for interview. The district officer may need to wait for the response to this check before making a final decision on the case, but an interview may be scheduled even if the final FBI response has not yet been received.

13. Child Status Protection Act Issues - I-824s and I-130 approval notices In order to preserve the CSPA benefits of following to join children (who are outside the US) where the primary is in the US and is filing an I-140 petition along with an I-485 application (or in some cases where the I-140 is already approved and the primary is only filing the I-485), the instructions are that the primary should file the I-824 along with the I-485. When and if the USCIS approves the I-485 then the I-824 will be approved and the following-to-join children will be considered to have taken the necessary steps to have indicated an intention to file for LPR status within one year of the priority date being current as is required by CSPA. The question is how to fill out the I-824 to alert the Service to this situation and to ensure the intended result. The instructions for both the I-824 and the I-485 are not clear. What is the correct way to fill out the I-824 when it is filed concurrently with the I-485? Any I824 filed for Option C, requesting that a U.S. Consulate be notified of an applicant's adjustment to LPR status, should be filled out as follows:

List the I485 applicant information in Part 3 as the I485 is the application that you are seeking action on. The I-485 applicant should also be listed in Part 1 and the person who signs the application in Part 4. A separate sheet should also be attached listing the dependents abroad who are planning to follow-to-join. The dependents name, date of birth, address and telephone number abroad should also be listed.

When the I824 is approved, the VSC will send the I485 approval information as well as the information provided for the derivatives to the Consulate. The VSC will contact the Consulate and inform them of the date that the I824 was filed.

The Service Center does not make a determination of CSPA eligibility when adjudicating the I-824. That determination will be made by the American Consulate abroad.

In addition, one member had a question about receipt and approval notices under CSPA. Does VSC screen I-130 cases to determine if CSPA applies? If not, what is the best way to alert the Service Center and present the calculation? When does the VSC assign the preference category for a family based beneficiary, at the time of filing the petition, or the time of approval?

The classification is assigned to the case as one of the initial actions taken by the officer on the initial review of the file. We do not determine whether the beneficiary actually qualifies under CSPA. That will be done at the time the beneficiary obtains the immigrant visa or time of adjustment.

It is noted that if, after a review of the petition and evidence submitted, the officer feels that the beneficiary may qualify under CSPA, he/she will make a notation in the "Remarks" portion of the I-130 block to alert the district or visa issuing post.

If the preference is assigned at the time of approval, and the beneficiary is over 21 at that time, but protected under the CSPA, shouldn't the approval notice show the beneficiary as an "immediate relative" rather than a "child?"

Again, that determination will take place at the time of adjustment or visa issuance.

14. U visa update. Would you please provide us with an update on U visa processing? Given that there are no regulations at this point, is there any advice you would offer to members in submitting cases showing prima facie eligibility? We understand that the upcoming regulations will clarify these issues, and we hope address processing of cases currently given deferred action.

Submit as complete a package as possible. Include copies of passport ID pages and/or birth documents to locate or assign A#'s. If they would like children listed as derivatives of the principal's deferred action, they must specifically state so in the cover letter. Include ID docs for each derivative child as well as the law enforcement certification listing the child's name.

Complete copies of each filing (principal and derivatives) also speeds the process along as we are less likely to miss individual filings or not get a complete record for each individual if they give us a full package for each person.

Including a self-statement and any supporting documentation (police reports, medical reports, psychological reports, news reports, court orders, etc) is also helpful for determining the question of substantial physical or mental abuse. An I-765 can be submitted with the initial filing. However, if the initial filing is deficient, the I-765 will be denied. Also, when submitting an I-765 with the initial interim relief filing, it is helpful if that is noted in the cover letter to assist with matching up the filings so that everything can be worked simultaneously.

Please note that there are no receipt notices generated for the interim relief request. However, I-765s that are filed with interim relief requests will receive a receipt notice.

The pending backlog has been greatly reduced in recent weeks so the time between filing and a decision being rendered is also reduced.

15.I-612 approval notices for hardship/persecution waivers. The Service cannot approve Form I-612 J-1 hardship or persecution waiver applications on its own. Instead, if it finds a case to be approvable, it fills out a Form I-613 transmittal sheet and mails that, along with the entire application, to the State Department's Waiver Review Division (WRD). When the WRD completes its review, it endorses the bottom of the I-613, and sends the entire application back to the Service, which then is required to issued a final decision on Form I-797. Over the past two years, there has been a systematic problem at VSC in processing the I-612/I-613 packages that arrive from WRD. In at least 25 percent of such cases, the package is mistakenly archived and no I-797 is issued. Only extended congressional intervention solves these situations.

One lawyer who handles many I-612 cases reports, for example, that he currently has this exact problem in these cases:

EAC-04-266-51329 (the I-797 is now 14 months late);

EAC-03-226-53748 (the I-797 is now 19 months late); and

EAC-05-114-5169 (the I-797 is now 7 months late).

Would it be possible to advise the mailroom to be on the lookout for I-613s to make sure they are directed to the I-612 file?

As far as your inquiry relating to the EAC files is concerned, EAC 04 266 51329 is now in New York City. We have requested the file back so that we can adjudicate the waiver. The second file is at the National Records Center and we have requested the file. As far as the third file is concerned, the EAC number is not correct in that it is missing digits.

The VSC mailroom is on the lookout for I-613's. Unfortunately, the I-613 resembles much of the other correspondence that we receive here on a daily basis. We will remind the mailroom again to lookout for these cases.

16.I-612 recommendations from DOS. How is the VSC addressing the unwritten State Department policy of only providing "one waiver per customer"? For example, if an IGA waiver is approved by the State Department, that agency has refused to adjudicate a separate hardship or persecution waiver. The State Department online case status system reads "not required to adjudicate." In that situation, what does VSC do? In this situation, would VSC press DOS to adjudicate and issue an advisory opinion?

We are not in a position here at VSC to pressure DOS for adjudication of a waiver. We send a letter from time to time asking them for an advisory opinion when we have not received a response to our prior request(s).

17.Alien divorces after I-751 joint petition filed. This question is a follow-up to the Minutes from last September. In response to a question about the NSC "flashes" on this subject, VSC stated that it was still following the April 10, 2003 Yates memo. That memo states that an I-751 waiver application cannot be filed until the marriage is terminated. However, there is one additional issue addressed by the NSC Flash - whether a new I-751 is required when the marriage is terminated. Should the I-751 joint petition be withdrawn, and then an I-751 waiver petition filed (thereby leaving a gap in status)? Or, can the alien notify VSC of the termination of the marriage and/or file an I-751 waiver while the I-751 joint petition is pending?

A new I-751 petition is required if the marital status of the conditional resident has changed. The conditional resident can file an I-751 waiver while the I-751 joint petition is pending.

CLARIFICATION BY VSC: When an I-751 joint petition has been filed and the CPR subsequently files another I-751 requesting a waiver of the joint filing requirement due to a change in marital status, we will administratively close the initial I-751 and process the waiver filing. We will take this action regardless of whether the applicant requests a withdrawal of the initial joint filed petition.

18. Schedule A posting on weekends for facilities that are open 24/7. An attorney reports being advised in an RFE that a facility which is open 24/7 may not count weekend posting days to fulfill the 10-business day requirement for Schedule A nurses. The RFE quotes from pension plans regulations 29 C.F.R. 2410.3-10T(3) to state that legal notice may not be posted on weekends or holidays in a facility that is open 24/7. Since this regulation is not incorporated by reference in the Department of Labor's Schedule A Regulations, or in the USCIS regulations, we are interested in knowing on what basis this determination has been made.

The Department of Labor's definition of a business day is Monday through Friday, excluding federal holidays, per 29 CFR 2510.3-102(e).

This issue is also addressed in the "Updated Guidance for Schedule A Blanket Labor Certification" information recently posted on the USCIS website.

19.Schedule A prevailing wage determinations. Is it also necessary that the prevailing wage determination for these cases state the name of the employer? If so, why?

The name of the petitioner does not have to be on the Prevailing Wage Determination (PWD). The prevailing wage is determined by profession (i.e. Registered Professional Nurse) and location.

20. Document submitted by attorney but not found in file. On occasion, an applicant or attorney will make the claim that a document was included in an application package, e.g., an ETA 9089 Approval Notice in a I-140/ I-485 Application concurrent filing and the Service states that it has no record of such submission. How does the Service make a determination in such a case? Does the determination differ where the document was available (as indicated by date of approval) at the time of submission. Does the VSC always take the position that is not Service error if there is such a claim? We note that we are grateful to VSC for sending new RFEs in cases where the record shows that a document was submitted, but it is not in the file.

If the submission of a particular document (i.e. labor certification) is required at the time of filing, we will not accept the filing without said evidence.

Once a case has been accepted, VSC will make a decision as to how to proceed based on the actual evidence in the file. If the record is deficient evidence that is required to approve a case, we will RFE/ITD for said evidence prior to final decision (regardless of what the attorney indicates was previously submitted).

21.Approval notice not received by attorney or client. If an attorney and client both state and are willing to attest by affidavit that an Approval Notice was never received, will the service issue a duplicate receipt, without requiring the filing of a I-824. There seems to be enough reports from attorneys and applicants to create a presumption that in some cases it is Service error and that in fact, no Notice was actually physically produced and mailed out.

CIS requires the filing of an I-824 when the original approval notice was confirmed as having been sent to the proper address and the applicant/petitioner/attorney is seeking a duplicate approval notice be issued. We continue to ask that the VSC Liaison Committee provide examples of cases in question so that we can research any possible trends in this area.

22. H-1B training fee. An employee works for Company A one-year and subsequently changes to H-4. Less than 6 years have passed and [s] he has not been out of the U.S. for one year and Employer A files a petition for H-1B to have the employee return to work. Since this is not an initial petition for this employee, does employer have to pay the $500 fraud fee?

In this situation, the employer would have to pay the $500 fraud fee. According to the 12/9/04 Press Release entitled USCIS To Implement H1B Visa Reform Act of 2004, it is noted the following:

Other than petitions to amend or extend stay filed by an existing H1B or L employer, there are no exemptions from the $500 fee.

The employer is requesting a change of status and therefore is required to pay the fee.

ADDITIONAL QUESTIONS NOT ON THE AGENDA

23. Will the Service reject an I-140 petition where the I-140 form is properly signed, but the PERM Labor Certification (which requires post approval signatures) is missing signatures?

VSC Verbal Response: The Service would issue an "RFE" in that situation.