Article: TO BRING OR NOT TO BRING AN INTERPRETER TO THE IMMIGRATION INTERVIEW IN USCIS OFFICES THAT USUALLY PROVIDE ONE.

As published in Lexisnexis.com on December 9, 2024

As published in the Immigration Daily on December 17, 2024

This topic came up in the New York AILA/District Director Meeting of November 19, 2024. New York City and a number of other USCIS field offices in the past and even now have generally provided interpreters for adjustment of status and naturalization interviews. New York was unique in rejecting interpreters brought in by applicants in the past because of perceived fraud in interpreters not correctly translating the words so as to favor the applicant. However, there has been a big move towards having applicants once again bring in their interpreters, and in the meeting, the New York office reiterated that applicants are required to bring their own – that while the New York District may be able to provide interpreters, Language Services is a shared resource throughout the New York District; and that they are therefore not able to guarantee interpreters; and the District pointed out that the appointment notice says to bring your own interpreter.

Despite the above, anecdotal evidence informs us that the District continues to provide interpreters in most cases upon request. In an AILA New York lawyers’ group chat in October 2024, one commenter observed that each field office is its own little kingdom; that if the language is one that is common, interpreters are provided, that if a less in demand language is involved, then you may run into problems if you did not bring one. The commenter also said to make sure to let them know that an interpreter is present, or is requested, when you check in, and be prepared to be told, “We will provide one!” if you have brought your own, and “You need to provide one!” if you have not brought your own. Our law firm asked the question at the New York District Office last week at both the Manhattan and Brooklyn field offices and we were informed that telephonic translators are still offered; that most applicants request one when they come in for their interviews; that you can bring your own interpreter; and it is recommended that you bring your own translator if you have an uncommon language such as Urdu.

What if you cannot or do not want to go to the expense and trouble of bringing an interpreter who may not be used? The recommendation of the District was to request an interpreter through the Contact Center. What are the consequences of not bringing your own interpreter when the New York District office or any other office that usually provides interpreters will not or cannot provide the interpreter? There appear to be a number of options available to an officer. 1.)  Going forward with the interview if it appears that the applicant can understand some English and the officer believes that the nature of the interview can allow the case to proceed without fluency on the part of the applicant.  2.) Going forward with the interview where the officer is fluent in the applicant’s language – such as provided for in the USCIS Policy Manual Chapter 5 – Interview Guidelines | USCIS.  3.) Explaining to the applicant that no interpreters are currently available so that the applicant would not be able to be seen on time and the officer would call the applicant’s name again when the telephonic interpreter (or one from a different floor of the district office) becomes available.4.)Turning away the applicant at the interview and saying that the applicant would again be scheduled, leaving the applicant in limbo as to when he or she will receive a rescheduled appointment notice unless the officer arranges a new date before the applicant leaves. 5.) Denying the application on the basis that the notice of interview clearly indicated that the applicant needed to bring an interpreter if one was necessary. However, that is an unlikely scenario given the uncertainty surrounding the availability of Service interpreters coupled with past practice of the USCIS office, and that lacking an interpreter does not go to the merits of the application such as a missing criminal disposition. We do note the  USCIS September 11, 2023, affirmative asylum interview notice that as of September 13, 2023, applicants must bring interpreters when needed, and that “If you need an interpreter and do not bring one, or if your interpreter is not fluent in English and a language you speak, and you do not establish good cause, we may consider this a failure to appear for your interview and we may dismiss your asylum application or refer your asylum application to an immigration judge.” Affirmative Asylum Applicants Must Provide Interpreters Starting Sept. 13 | USCIS. We do not, however, believe the stricture applicable to other USCIS interviews as no such warning appears in the USCIS Policy Manual.

So it would appear that there is a risk in not bringing an interpreter to USCIS offices that usually provide one, and that the degree of inconvenience or punishment could largely be within the discretion of the District office. If the interview involves an uncommon language, the risk is greater that the field office will not be able to timely obtain the services of its own interpreter, and so it is highly recommended that, at least in those cases if not others, applicants should bring their own interpreters or make arrangements with the USCIS Contact Center prior to interview.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on December 8, 2024: 1. USCIS will generally not deem your I-485 application abandoned if you depart the United States and return on a valid H-1B visa. 2. A Porting Determination

1. USCIS will generally not deem your I-485 application abandoned if you depart the United States and return on a valid H-1B visa. 

A reader asks:
I submitted my I-485, I-131, and I-765, but they haven’t been approved yet. I initially thought leaving the country would only mean forfeiting the I-131 and I planned to return to the U.S. on my H-1B visa. However, I later realized that if I don’t have a combo card, my case will be rejected if I’m abroad with the I-485 being processed. Is this true? My question is, can I leave the country six months after submitting the I-485?

Arthur Lee Esq. Answers:
If you are in valid H-1B status with a valid visa in your passport, USCIS will generally not deem your I-485 application abandoned if you depart the United States and return on the H-1B visa. Assuming that your H-1B visa and status will still be valid 6 months from now, and that you will still be in the same job which conferred you H-1B status, USCIS will not likely deny your I-485 due to your travel outside the United States. To minimize your risk of being denied entry on your H-1B visa, you should bring your official H-1B approval as well as sufficient evidence that you are still in your H-1B job being paid at least the salary stated on your company’s I-129 petition on your behalf. Such evidence may include but is not limited to a job letter by the company verifying your position title and salary, and recent paystubs from your employer.

2. A Porting Determination

A reader asks:
I applied for EB-3, had my green card interview in October 2023, but it has been stuck at “Interview Completed, Under Case Review” until now (October 2024). I emailed the immigration office, and their response was that my case is still within the normal processing time. I’ve already submitted my I-485 and received a new offer, but the base salary is $20,000 less than my old company. If i take this new job and submit a new I-485J with the new company, will the lower salary affect my case?

Arthur Lee Esq. Answers:
Under job porting, you are allowed to take a position that is in the “same or similar” occupational category as your position that is the basis of your I-140 petition. After you submit your I-485J (which can be submitted in response to an RFE, at an adjustment of status interview, or proactively if you wish), USCIS will take a myriad of factors into account to determine whether your position is “same or similar” to the one that is the basis of your I-140 approval. These factors include but are not limited to the DOL assigned occupational code for the new position; the job title; job duties; required skills and expertise; educational and training requirements; licenses or certifications typically required; offered wage or salary; and any other credible evidence submitted that demonstrates that the position is in the “same or similar” job classification. USCIS understands that sometimes employees find themselves in situations (such as being laid off or feeling disgruntled in a place they work) where they must make lateral moves or even take lower salaries. So in your situation, the lower wage is a negative factor. However, that may not be fatal in a porting determination if on balance, the rest of the listed factors demonstrate that your job is in a “same or similar” job occupation.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on December 1, 2024: It is not advisable to file an H-1B transfer to a new position until after you have an I-485 application pending for at least 180 days

It is not advisable to file an H-1B transfer to a new position until after you have an I-485 application pending for at least 180 days

A reader asks:
I submitted a PERM application in January 2024, and based on my current processing times, I expect it to be approved around February or March 2025. I plan to have my lawyer immediately submit the I-140 after PERM approval with premium processing. I predict that I will receive I-140 approval around March or April 2025. If I want to switch to a new company immediately after getting I-140 approval, based on this timeline, should I first have my current employer file an H-1B extension, or if I find a new employer before the end of June (my initial 3 year H-1B expires in June 2025), should I have the new employer file the H-1B extension? Should I have the old employer file the extension then switch employer after 180 days?
Arthur Lee, Esq. Answers:
My general recommendation would be to have your current employer file an H-1B extension on your behalf. Job porting only works if you have an I-485 application that has been pending for at least 180 days and you work in a position that is in a same or similar occupational classification that is the basis of your I-140 approval. If you have your I-140 petition approved, then switch to a new job immediately without having an I-485 application filed and pending for at least 180 days, then your PERM ETA 9089 and your I-140 approvals will not be valid for your I-485 application. You will not be able to port in this case. If you do move to a new position, then you will need to start the PERM process over. The only thing that you might retain is your priority date assuming that your soon-to-be previous employer has not timely revoked your I-140. Unless your employer is still willing to offer you the I-140 position upon your I-485 approval (which seems unlikely in this case), you would need to have your new employer start over from scratch in the PERM process. Therefore, it is not advisable to file an H-1B transfer to a new position until after you have an I-485 application pending for at least 180 days based upon an approved or pending I-140.