Preparing for Employment-Based Adjustment Interviews
By Michael H. Markovitch on October, 26, 2017
Beginning October 2, 2017, all I-140 employment-based adjustment of status applicants will be required to appear for an in-person interview at a USCIS Field Office.
Who will be interviewed?
All individuals who filed I-140-based adjustment of status applications on or after March 6, 2017 will be interviewed. This for all those in the process of Emmigration. USCIS may waive the interview for children under the age of 14, but all family members will receive individualized interview notices regardless of age.
Will the field officer re-adjudicate the underlying I-140 at the interview?
One USCIS Director Renaud clearly stated that I-140 petitions will continue to be adjudicated by USCIS service centers, and that field offices are not to re-adjudicate the petition. Field offices are directed to assess the validity of the supporting documents upon which the Service Center relied in approving the I-140, and to evaluate whether the evidence submitted to support the petition was accurate, bona fide, and credible. The applicant will be asked to explain where they will work, what they are going to do, and their educational background and experience. USCIS will also confirm that the employer still intends to employ the applicant and that the applicant still intends to take up employment. Obviously, the line between re-adjudication and evaluating the credibility of evidence is extremely narrow, and needs to be done right to avoid Employer Sanctions. If the field officer finds the evidence does not support the approval, he or she must send it and all
associated I-485s back to the Service Center with a recommendation to revoke the I-140.
Attorneys should accompany employment-based clients to their interviews. This is especially important during the first few months of the new interview requirement, as training and procedures are still fairly new. Attorneys should explain to their clients the scope of the interview and prepare them for questions on both the underlying I-140 Immigrant Petition for Alien Worker and the I-485 adjustment of status application. In addition, be sure to carefully review any underlying PERM application (which may have been filed years ago) and the I-140 petition in detail with client. Clients must be able to articulate their education, experience, and the job described on the PERM/I-140, and confirm that their current position is in the same or a similar occupational classification.
Attorneys should also review all previously filed nonimmigrant and immigrant petitions, visa applications, and passport/admission documentation to confirm the absence of any possible misrepresentation or other issues, and ensure clients are prepared to explain their entire immigration history. Even though you reviewed all inadmissibility grounds prior to filing for adjustment, be sure to review them again with the client. In addition, give extra scrutiny to: portability issues, maintenance of status issues and INA §245(k), successor-in-interest issues and ability to pay. With the long periods of time between the filing of a PERM and adjustment of status due to per-country quotas, clients should be also be prepared to explain any inconsistencies with
prior H-1B petitions or prior labor certifications filed by other employers.
AILA attorneys have reported over the years differing treatment at field offices when it comes to attorney participation in the interview process. In any interview setting, but particularly at field offices where attorneys are discouraged from active participation (the “potted plant” theory of representation), if it appears that the officer is proceeding under a fundamental misunderstanding of the underlying law or facts, it is imperative that you politely but firmly intervene. This vigilance is particularly important given the possibility of an unfavorable recommendation on the validity of the I-140.
What should the applicant bring to the interview?
Interview notices issued for cases early in the new process are generic and include documents that are appropriate for family-based marriage-based cases, rather than employment-based cases. This can easily cause confusion for clients and adjudicators. It is suggested that attorneys/clients bring the following documents to an employment-based adjustment interview: Bring the current Visa Bulletin to show eligibility for adjustment of status, or, if priority dates have retrogressed, bring the Visa Bulletin from the date the adjustment application was filed to show that the client was eligible when he or she filed. One should also bring USCIS adjustment of status filing charts in order to 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 client filed in accordance with the “dates for filing” chart, a copy of the chart for the month that he or she filed, confirming this was permissible can help avoid confusion and delays.
Evidence of Education/Experience. Bring documentary evidence demonstrating the adjustment applicant qualifies for the PERM/I-140 position, such as original diplomas, degrees, university transcripts, experience letters, and licenses/certificates, if applicable. Be sure to bring certified English translations of any/all foreign language documents as well. A complete copy of the I-140 supporting documentation is advisable.
Evidence of Maintenance of Status. Bring evidence that the client has maintained status or meets the requirements of INA §245(k), including: Copies of all SEVIS forms for individuals previously holding F or J status, and any accompanying employment authorization documents; printed travel history from the CBP I-94 Website; Copies of all I-797 extension of status notices and EADs issued since filing the adjustment of status applications for all family members to show no unauthorized employment for more than 180 days before/after filing.
Consider bringing complete copies of the applicant’s tax returns to present them if requested, but note that such a request is beyond the employment-based regulatory requirements.
Evidence of Bona Fide Family Relationships. In cases involving derivative family members, bring original marriage certificates (and proof that each party was free to marry, if applicable) and birth certificates for children, along with certified English translations if necessary. For marriages, bring documentation to show not only the
legality of the relationship, but the bona fides of the relationship (evidence of joint assets and accounts, home ownership, rental agreements, etc.). If spouses are not living together, be prepared to explain why and bring supporting documentation (e.g., proof that one spouse is finishing his or her education or has a job he or she cannot leave).
Evidence of Current Employment: Bring recent paystubs and a letter from the employer confirming that the individual is employed in the same or a similar occupational classification. Bring a new Supplement J, if there has been a position change and there is no approved Supplement J.
Medical Examination. Bring a completed Form I-693, Medical Examination if a medical examination form was not previously submitted or if a previously submitted form has expired.
Conclusion
Prior to 1992, employment-based adjustment applicants were interviewed routinely by the Immigration and Naturalization Service. But for the last 25 years the government has typically waived employment-based adjustment interviews except for about 5 to 10 percent of applicants. Moving forward, with “extreme vetting” part of the new immigration policies, we can expect all interviews to be more intensive than ever before. According to the USCIS press release announcing the new interview requirement: applicants in these categories [employment based I-485s and I-730 for beneficiaries in the U.S.] did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types. ‘This change reflects the Administration’s commitment to upholding and strengthening the integrity of our nation’s immigration system,’ said Acting USCIS Director James W. McCament. ‘USCIS and our federal partners are working collaboratively to develop more robust screening and vetting procedures for individuals seeking immigration benefits to reside in the United States.
