Powell Immigration Law PC | Business, Employment and Family Immigration Law | California

Attorney Blog

Important Information and Updates Concerning Immigration Law

Mandatory Interviews for Employment-Based AOS Applicants

New Interviews and their Overarching Implications

The new administration has brought with it a number of updates in its efforts to intensify immigration proceedings, and another such policy has recently gone into effect. Since 1992, the prevailing practice for USCIS (United States Citizen and Immigration Services) was to simply adjudicate employment-based adjustment of status (AOS) applications at their service centers and forgo the in-person interviews used in other various visa categories. This is no longer the case.

Begun on October 1st, and declared to be effective for employment-based Form I-485 AOS applications filed after March 6th of 2017, all approved Form I-140 applicants and their dependents falling under the EB-1, EB-2, and EB-3 visa categories will be required to attend in-person interviews for said approval to be finalized. EB-5 AOS applications based on approved Form I-526 petitions were not included under the new stipulations, but USCIS did state that it could interview such applicants at both the AOS and removal of conditions stages. 

New Interview Requirements for Adjustment of Status Applicants

This is a significant shift from previous policy, under which as few as five to ten percent of employment-based AOS applicants were required to submit to interviews, and almost only due to circumstances pertaining to an applicant's criminal history or unlawful presence. Furthermore, in consideration of the current administration's rhetoric that emphasizes "extreme vetting" in immigration proceedings, all interviews may be more intensive than ever before.

What to Expect

UCSIS has emphasized that the principle of these expanded interviews is the sole intent to verify the supporting documentation and information within the approved I-140 petition. Field officers are instructed to give full faith to the USCIS Service Center Operations Directorate (SCOPS) evaluation and therefore not re-adjudicate the petition. Even in EB-1 extraordinary ability cases, applicants will not have to further prove their "substantial benefit" to the U.S., they will simply have to validate the evidence provided in the I-140.

However, there are still dangers present in this new step, and applicants should take all the possible precautions in ensuring that the field officer has no reason to doubt the validity of the approved petition's assessment. 

The Approval and Interview Scheduling Process

As stated before, SCOPS will adjudicate the I-140 petition and, if approved, the case will then be sent to the National Benefits Center (NBC), the effective "hub" of Field Operations.  The NBC is responsible for conducting all pre-processing activities and determinations that cases are ready for interview, to which individual Field Offices will communicate their available interview slots to be filled. It is at this point that the NBC will send notices to applicants and their attorneys describing when and where to appear, in addition to supplying the case file to the interviewing field office. 

Questions to be Asked

In general, applicants will be expected to confirm the information contained within their approved I-140 AOS petitions so that the field officer can observes the case details as credible. This means accurately describing their employment as well as relevant information such as their job duties and how they meet the experience and education requirements that qualified them for the I-140 petition.  As with other AOS interviews, applicants must also show that they are not vulnerable to inadmissibility due to criminal issues, immigration violations or other issues that would prevent an approval for permanent residence.

Documents to Bring

The interview notices issued early in this new process have been generic, even as much to add confusion by including documents related to family and marriage-based cases, though USCIS has indicated that it will modify the notices going forward. For employment-based AOS interviews, applicants should have the following documentation prepared:

  • Evidence of Education/Experience: Bring evidence of the applicant's qualifications such as original diplomas, degrees, university transcripts, experience letters, and licenses/certificates when applicable as well as certified English translations of these documents if needed. It may also be wise to bring a copy of the I-140 supporting documentation to avoid confusion. 
  • Evidence of Maintenance of Status: Evidence should be prepared showing that the applicant has maintained status or continues to meet the requirements of INA §245(k). Relevant documentation may include:
    • Copies of all SEVIS forms for applicants previously holding F or J status and any accompanying documents of employment authorization
    • The applicant's travel history as printed from the CBP I-94 website.
    • Copies of all I-797 extension of status notices and EADs that have been issued to the applicant since filing the AOS applications for all family members to show that no unauthorized employment occured for more than 180 days before or after the filing.
    • W-2 copies demonstrating that the applicant's employment is consistent with his or her status. Tax returns may also be helpful in the case that they are requested, but applicant should be aware that such a request is not included under employment-based AOS regulations.
  • Documentation establishing legitimate relationships with dependents (see below under Interviews for Spouses and Children).
  • Evidence of Current Employment: Bring recent paystubs as well as a letter from the employer confirming that the individual is employed in the same or a similar occupational classification. Note that if the field officer is not able to confirm that the applicant's employment is the same or similar, they will have to resolve the issues with SCOPS or USCIS HQ. Also bring a new Supplement J if there has been a position change and there is therefore no approved Supplement J.
    • Note that the applicant will not be required to supply financial information regarding their employer, as that information is included in the I-140 and the field officer is to defer to the judgment of SCOPS in such respects.
  • Medical Examination: If a Form I-693, Medical Examination  was not previously submitted or if a previously submitted form has expired, the applicant should bring a newly completed form.
  • Visa Bulletin: Bring the current Visa Bulletin to demonstrate one's eligibility for AOS. If the priority dates have retrogressed, the Visa Bulletin from the filing date of the adjustment application should be presented to show that the applicant was eligible upon said filing.
  • USCIS Adjustment of Status Filing Chart: These will show whether USCIS will permit adjustment applicants to file in accordance with the Visa Bulletin “dates for filing” or “final action dates” each month. If the applicant filed in accordance with the “dates for filing” chart, a copy of the chart for the month that the applicant filed should be presented, demonstrating that doing so was permissible and helping prevent any confusion or delays.
  • Regulations and Policy Guidance: It may be a useful precaution to bring copies of applicable regulations, excerpts from USCIS Policy Manual, I-485 instructions and the like in order to show that items erroneously included in some notices (such as the I-864 Affidavit of Support) are not required.

It is recommended that preparations be discussed with legal counsel to ensure that all grounds are covered.

Further Preparations

Attorneys may accompany applicants to the interview (as well as translators, when necessary), and it is highly recommended that this is taken advantage of. This is especially true during the first few months of the new policy's implementation, when as the procedures and relative training of field officers will be fairly new, and a present attorney may be instrumental to clearing any confusion that may result in an undesired outcome. Extra preparation before the interview with an attorney will also prove extremely useful in ensuring that no case-specific complexities are left uncovered. 

In particular, employment-based AOS applicants should always inform their attorneys of the following situations:

  • Transfer to a new employer or payroll entity.
  • A change in employment location.
  • Changes in anything concerning the applicant's job title, duties or salary
  • Shifts in the applicant's full or part-time status
  • Restructurings such as corporate mergers, acquisitions, name changes, FEIN changes, etc.
  • Termination of employment
  • Any arrests in the U.S. or abroad

Applicants should also continue to extend their current underlying nonimmigrant status until permanent residence has been approved. 

Interviews for Spouses and Children

The dependents of employment-based AOS applicants will also be required to submit to interviews, and, though USCIS has explained that it will attempt to schedule these interviews at the same time and location as the applicant in question, this is not promised and applicants should be prepared for the contrary. USCIS may also waive interviews for dependent under the age of fourteen. 

Expected questions include:

  • The legality of the relationship to the primary applicant.
    • Spouses should present original marriage certificates in addition to birth certificates (or documentation confirming custody/adoption, etc. when applicable) for children.
  • Inquiries as to the bona-nature of the relationship with the applicant.
    • Spouses should present documentation supplying evidence of the marriage's legitimacy, such as sharing the same residence, joint taxes/accounts/assets, evidence of the children's being born to the marriage, etc.

Additional Questions as to the New Policy's Impact

Cases that are Not Approved by the Field Office

In a process similar to that under consular processing, if the field officer does not believe that the applicant is eligible for adjustment of status (the I-140's supporting evidence is not credible), the I-485 AOS petition will be denied and the I-140 will be returned to SCOPS with a recommendation of revocation. If SCOPS concurs with the field officer's judgment, it will issue a notice of Intent to Revoke. If the grounds for revocation are overcome, SCOPS will affirm the I-140 and complete the I-485 AOS adjudication. However, if SCOPS does revoke the I-140, it will likewise revoke the I-485.

Effects on Processing Times

While USCIS has not affirmed how long it will take to process employment-based AOS applications or the expected waiting times for interview assignments, the agency has expressed that these expanded interviews will amount to an estimated 17% of its total workload. This will cause delays in such processes as well as delays in all of USCIS's adjudications and interview-based applications such as those that are family-based or pertaining to naturalization. Though USCIS has optimistically stated that it will adjust its staffing accordingly, it has been hypothesized that AOS applications will take a year or longer to be adjudicated.

"Just" Another Obstacle

As has been the case with all adjustments undertaken by immigration agencies to conform to President Trump's new directions concerning the fluidity of the nation's borders, this expansion of interviews to employment-based adjustment of status applications will present new vulnerabilities for approval as well as encumbering the immigration process as a whole. It is important that current and prospective nonimmigrants inform themselves as much as they can regarding the details of these new policies, and consult with experience legal counsel when possible.

These new policies in most cases will not necessarily bar some of those whom may have been accepted before, as they may still be overcome with proper diligence. However, they do entail an increased sense of preparation for prospective individuals so that one does not needlessly delay their aspirations, or worse.