Nebraska Service Center Q&A On Refugee And Asylee Applications
On November 23, 2004, the Nebraska Service Center (NSC) held a conference call on refugee/asylee applications/petitions and released the following Q&A summary.
1. If a refugee with a valid RTD marries and changes her name, must she apply for a new RTD? Would the RTD still be valid if her name has changed?
There is no requirement from CIS that a new RTD be obtained; however, it would be in the applicant's best interest to carry proof of legal name change with him/her at the time of entry. It is possible that the name change might get the applicant referred to secondary, so it is the personal choice of the applicant whether they replace the RTD to avoid any delay or questioning when using the RTD.
2. Is any policy guidance available on circumstances that would warrant approval of an I-730 more than two years after the grant of asylum? Anecdotally, it appears the Center was more generous in its interpretation of this provision previously but has become less so. I have had several compelling cases denied recently in circumstances where children were missing for long periods of time or parents were unable to get required documentation in a timely manner.
NSC has not developed a written standard for the adjudication of exceptions to the two-year filing deadline for I-730s. Each request for "humanitarian reason" is adjudicated on a case-by-case basis. The decision is based on the totality of the circumstances and not on any one factor considered in isolation. A reminder: to be favorably considered, the request must demonstrate why the PETITIONER was unable to file during the two-year period. The circumstances of the beneficiary(ies) are rarely germane.
3. What is the Center policy/procedure regarding a request to change location of overseas processing for beneficiaries in I-730 cases? On at least two occasions, I have made a written request that a petition be sent to a different U.S. Embassy than was listed on the I-730 (in both cases because the beneficiary relocated to another country), nonetheless the petition has been sent to the country on the original I-730. It is almost impossible to make this change once the petition has been forwarded to the NVC and requesting that the file be transferred once overseas is difficult.
A request to change location of overseas processing for I-730 beneficiaries can be initiated by filing an I-824 (note: the beneficiary's foreign address should be included in any such request). The NSC will notify the current embassy/consulate to request the I-730 from the original overseas post listed on the I-730. The petitioner can also contact the current overseas post directly and request that the I-730 be sent to the new post for the interview.
4. How do we as representatives get information regarding client "Green Card" status if a receipt with LIN# has not been received? In the past we have not been able to receive any information.
We are able to obtain status information on a pending application/petition by using the applicant's full name or A number if the receipt number is not available. This information can be given to the representative provided there is a valid G-22 on file or with the request. You may contact the National Customer Service Center (NCSC) at l-800-375-5283. They will take a non-receipt referral. The service center has 30 days to answer the inquiry. You may send in a written inquiry to our service center at P.O. Box 87485, Lincoln, NE 68501-7485; but the NCSC method is generally faster.
5. The Nebraska Service Center has sole jurisdiction to adjudicate adjustment of status applications for UN retirees and their children. Can their processing times be separately listed on the processing time report or, failing that, on NSC's web site? Headquarters dictates the format of the processing time report, so we have referred this question and have yet to receive a response. We will send an addendum to this document when we hear from them.
6. Please discuss the processing rates for HRIFA cases. The priority date for HRIFA cases has moved less than one month in more than a year and currently is stuck in January 2000. Please explain the back-up in processing these cases. Please also indicate the number of HRIFA that have been adjudicated each month for the last six months.
A number of factors have contributed to the slow-moving processing dates for HRIFA I-485s. The most significant is resources: until recently, the NSC has only been able to dedicate two officers to the processing of HRIFA applications. The number of age-out filings we must process compounds the scarcity of resources. Since the Child Status Protection Act does not protect HRIFA dependents, we expedite processing of families who have a child/children approaching their 21st birthday to minimize the number of children who become ineligible for benefits. Consequently, we have been unable to adjudicate submissions in the order in which they were filed.
In the past six months, we have completed 773 HRIFA I-485s and 1,253 HRIFA I-131Fs. However, since the vast majority of the cases we worked involved age-out family members, there was no movement in the processing date.
Looking at statistics for each fiscal year further illustrates the impact of age-out processing. In FY 2004 more than 30% of new I-485 receipts were completed. These were all related to age-outs. Likewise, we completed over 20% of I-131s for dependents in Haiti filed in FY2004 which also were age-outs completed. (See charts below.)
Another factor in the slow movement of processing dates is the spike in receipts at the end of the filing period for principals. Roughly half our pending HRIFA I-485's are principal filings, so about half of our pending are pre-April 1, 2000 filings. It will take some time to get through these.
Recently, the NSC increased the staff dedicated to HRIFA processing to eight full-time adjudicators. This allocation of resources allows for more adjudication time to be devoted to HRIFA filings that are not related to age-outs. We are already seeing the impact and will soon be moving the processing date for HRIFA I-485s to February 1, 2000. Applicants who filed in February 2000 or before should be receiving fingerprint scheduling notices. If they have not received fingerprint scheduling notices, they are encouraged to use the AR-11 process to notify us of address changes.
7. Please provide an update on the number of Indochinese Parolee I-485s have been approved to date by NSC. This is a special category provided for by Section 586 of P.L. 106-429. The current processing date shown on the reports under "Indochinese Adjustment Act" has not budged off of January 27, 2003, ever since the application period opened up on that date. The legislation allows up to 5,000 parolees to adjust. Has NSC approved any of these cases? How many exactly have been processed?
Yes, NSC has approved 4,065 Indochinese adjustment applications.
8. Currently refugee 485s are backlogged to March 31, 2002. Unlike asylum adjustments, we understand that there is no numerical cap on refugee adjustments. Are refugee adjustments part of the backlog reduction program? Are the processing times for refugee adjustments likely to improve soon and if so, to what extent?
Yes, this case type is very much a part of the backlog reduction program. As a result of the realignment of officer staff, we have doubled the number of staff that is working this case type. Further, we are in the process of implementing a streamline process that will result in a higher number of completions. We anticipate the processing times for refugee adjustments to move forward very soon to May 31, 2002. Backlog goals will have us processing October 2004 cases by October 2005.
9. We understand that approved asylees are not required to possess a valid EAD card in order to work; however, for many asylees an EAD is the only official identification document they can obtain and it is a vital document to have for practical reasons. For instance, many employers are not persuaded by Mr. Yates' March 10, 2003 memo which affirms that an asylee is not required to have an EAD in order to legally work. And many states now require presenting one or more valid, unexpired identification documents in order to obtain a drivers' license. For many asylees, an EAD is the only document they can present that complies with that particular state's drivers' license regulations (e.g., their passport from the country of persecution is expired and they don't want to renew it here in the USA because they are not trying in any way to avail themselves of the home government' protection, even just to get a passport). Some asylees who have filed I-765s have been RFE'd for a color copy of some other photo ID such as a drivers' license- this creates a Catch-22 situation. What is NSC's authority for requiring providing a color copy of some other photo identification before issuing an EAD? Will NSC waive this requirement in the case of asylee I-765 applicants who have no other photo ID?
If an applicant is requesting an EAD as an asylee, the NSC does not RFE for a color copy of a photo ID. If the applicant is an asylee and has been in the U.S. for 1 year or less, the Service does not require a photo ID. If the applicant has been in the U.S. for over one year, a photo ID is required, but the initial EAD meets this requirement.
10. With the moving up of the asylee adjustment cut-off from 11/16/1999 to 3/30/2000, what is NSC's practice for notifying asylee 485 applicants that they should now obtain medical exam results? In the past we've understood that asylee applicants need not enclose medical exam results at the time of I-485 application but will instead be notified by NSC. What is the anticipated form of notice- will an RFE be issued? If so, will the standard 87 days be given to provide the exam results? Applicants understandably do not want to obtain a medical exam before NSC notifies them to submit one, since if they obtain it too early and then their I-485 is not reached, the exam results could expire; alternately, applicants who go out and get an exam done once NSC notifies them to submit them might not be able to provide the exam results within the specified deadline. Will NSC be flexible in situations where the applicant has had a medical exam done within the deadline and explains the reasons why the sealed envelope of results is not yet available by the RFE deadline?
An RFE will be issued for any required evidence, to include the medical examination and relating vaccination supplement. The regulatory 87 days will be allowed for the applicant to respond. To date, we have not found that completion of Form I-693 or the vaccination supplement has been a problem within the 87-day timeframe.
It is critical to stress that applicants must continue to provide any and all address changes through the filing of an AR-11. A copy of the AR-11 should be sent to the Nebraska Service Center directly as well as to the address listed on the AR-11 form.
11. Some AILA members report that in the past a computer printout showing an asylee receives means-tested benefits (of a kind asylees are permitted to receive), that printout would be sufficient to get the asylee's 485 accepted by NSC for processing without filing fee. Nowadays, however, that proof doesn't seem to be sufficient for the fee waiver request to be approved. Experience shows that a previous year's tax return (Form 1040, 1040A or 1040EZ) plus the proof of receiving means-tested benefits is often sufficient for NSC to approve a filing fee waiver, but many asylee 485 applicants do not have sufficient income and therefore they do not have a 1040 tax return to provide. Their requests for filing fee waiver have been rejected.
Mr. Yates' memo dated March 4, 2004 titled "Field Guidance on Granting Fee Waivers Pursuant to 8 CFR 103.7(c)" indicates that an individual's overall financial picture and household situation are some of the factors taken into consideration in determining if CIS will waive filing fees. We understand this, but Mr. Yates also notes that asylees are one of the categories of applicants who "may be given wider latitude in required income levels when determining fee waivers." As CIS continues to need to raise filing fees for all kinds of applications, some asylees are simply unable to file for adjustment because they cannot afford it. When an asylee has no 1040 tax return to provide, will NSC exercise wide latitude and consider the receipt of means-tested public benefits as sufficient proof that a waiver of the I-485 filing fee (and filing fees for related applications) is warranted?
While we give full consideration to receipt of a means-tested benefit, documentation of household income must be provided. If the applicant was not required to file a federal tax return he/she should be able to submit documentation from the IRS that no tax return was filed for the most recent tax year. In addition, the applicant should provide a listing of monthly income vs. expenses is helpful in showing that the applicant has an "inability to pay." Many of the fee waiver requests received and subsequently denied for asylum I-485 applicants contain minimal or no documentation of the type mentioned in the March 2004 memo.
12. Related question: Some asylee I-485s have had the filing fee checks returned uncashed. For these cases, does this mean a fee waiver has been granted and the 485 accepted for processing without filing fee?
Without having specific details it is impossible to say with any certainty why the uncashed check was returned. Any such filing fee being returned should be accompanied with a letter explaining why it was returned. If the application fee is waived the applicant will receive a LIN receipt notice.
13. Because processing times for EAD applications vary widely from month to month, it is virtually impossible to know the best time for filing so as not to have a lapse in employment authorization by applying to late, or to lose time on the current authorization by applying too early. It appears that the NSC is approving EAD extensions with a validity date from the date the I-765 application is approved. Would the NSC reconsider this policy in light of the above, and make approvals effective as of the ending date of the previous authorization? If not, what are the factors that preclude the NSC from adopting this policy? Wouldn't it be more consistent with the Service's goal to not have one applicant possessing two valid EAD's at the same time?
We do not agree that processing times vary widely from month to month, so we will respond as best we can. An applicant is eligible to apply for an EAD 90 days prior to expiration of previously issued EAD. As for validity dates, the NSC authorizes employment from the time the previous EAD expires unless it is in the past. The Service does not backdate employment authorization, but does forward date the EADs. Otherwise the applicant is in possession of two valid EADs.
14. Members report that on several occasions, reentry permits have been issued for only one year, when the application specifically requested two. What criteria do the adjudicators apply in determining to issue the document valid for only one year when two have been requested? What is the best process to secure a new document promptly if the permit is issued incorrectly?
8 CFR 223.3(a)(1) states that ...'reentry permits shall be valid from two years from the date of issuance' unless the applicant is a conditional resident. 8 CFR 223.3(c) goes on to say that 'A reentry permit or refugee travel document may not be extended'. There is no provision for backdating or forwarding dating a travel document, as validity dates are issued from the date of adjudication only.
Travel documents that are received by applicants but appear to be incorrect may be returned to the Nebraska Service Center, PO Box 87172, 850 S St, Lincoln NE 68508, with a detailed explanation of what is believed by the applicant to be incorrect. Any appropriate supporting documentation in support of the requested change (such as birth and marriage certificates) must accompany the returned travel document. If the Service believes that the travel document was produced correctly according to the Service record, the Service will return the travel document to the applicant unchanged. If the Service agrees that it made an error, we will correct the error and produce a new document for the applicant.
15. The advance parole dates for HRIFA derivatives are also backed up to 1999. Please explain this backlog and indicate how many of these advance parole applications have been adjudicated each month for the last six months.
Please see the answer to question six.
16. Advance Parole taken by CBP incorrectly - When an I-485 applicant returns to the USA with Advance Parole, sometimes the CBP inspector will (over the protests of the alien) incorrectly take all three sheets of the I-512 parole document away from the alien, even if the I-512 was approved for multiple entries and still has validity left on it. In these cases where it is really not the alien's fault that they no longer have their I-512, will NSC be willing to expedite processing of a new I-131 application so that the alien is not stuck in the USA without Advance Parole for another several months? Or is it possible to put a sentence on the Advance Parole Document to indicate that the Alien should keep one copy?
The seizure of all of the document copies should be addressed with CBP. We would mention, however, that inspectors have broad authority at the time of admittance, which includes the ability to seize immigration documents. As for expediting cases because the inspector confiscated the documents, we would only be able to do so if the situation causes a hardship that meets expedite criteria (see our web site for a listing). Changing the text the document would need discussions and approval between CIS and CBP and will be addressed to headquarters.
17. I-730s are currently backlogged to September 1, 2003. What is the current number of pending I-730s? Can NSC provide an estimate on whether I-730 processing times are likely to improve soon and if so, to what extent? Asylee families are at great risk. Spouses and children back home are living very often literally in hiding from their persecutors during this processing time. Can you explain the prioritization of applications overall by NSC? We realize that HQ has not chosen to make I-730s a priority. Can NSC, within the range of discretion given it to prioritize cases, give greater emphasis to I-730s? Failing that, can expedites of processing of I-730s be granted in compelling cases, such as where the overseas spouse has died and therefore the children of the asylee are now on their own without the spouse/parent to care for them?
We currently have approximately 23,626 pending I-730s at NSC. We anticipate assigning more officers to adjudicate I-730 during the second week of December. This should improve their processing time. The NSC has an expedite process in place for all petitions/applications and I-730s are reviewed under that procedure and processed accordingly. Unfortunately, most I-730 beneficiaries overseas are in similarly poor predicaments and we cannot expedite all of them. We do, however, review all I-730 expedites on a case-by-case basis.
18. Many Liaison requests involve names being inappropriately shortened (cutting down family/last names while leaving middle names intact, for instance) on EAD's, I-94's and approval notices. Since security concerns require government and private agencies such as the Social Security Administration, state Drivers License facilities, airlines, etc. to verify identities with multiple documents, consistency in how a name is written has become very important. To that end, it would be helpful to know how many characters (letters and spaces) are available for printing out names on the various types of documents the Service produces so that applicants can plan wisely when completing their applications. For instance, someone with two middle names could use initials instead of writing out the entire name. Or given names with common abbreviations like Maria (Ma.) or George (Geo.) might be used, so as to avoid leaving off half of a second family/last name. Can the NSC make this information available to the public to facilitate name-matched documents in the future?
This is a good suggestion. The NSC will look into collecting that information and posting it to our web site along with other customer filing tips.
19. Many liaison requests involve situations where NCS records say that a document (EAD/parole/reentry permit, etc.) has been produced and mailed to the proper address, but the named recipient has not received the document. When the document which was supposedly mailed has not been "returned" to the Service, applicants are forced to reapply and to pay again for a document which they never received. What steps does the NSC take to verify that documents that have been entered into the system as produced have actually been mailed? Is there some step in the mail room where mailing is actually verified, or is the data entry completed when the document is produced? Would the NSC consider such a step if one does not already exist? This seems to be a growing problem.
The NSC does take steps to ensure a document is actually mailed at the time the computer system is updated to reflect the document has been sent. After travel documents are produced they are delivered to our contractor. The contractor updates each travel document individually into our computer to reflect they have been mailed. The documents are then hand carried directly to the mailroom.
20. What is the best method of getting the Service to promptly adjudicate a timely filed Motion to Reconsider when the 3/10 year bars are at stake based on the outcome?
You may request the motion be treated as an expedite in the same way it's requested for petitions and applications. Be sure to clearly indicate "Expedite" on a cover sheet with the motion. You may also include an expedite letter with the motion outlining the specific reasons for the expedited treatment.