Arthur Lee, Esq. Article:
Requests for further evidence for submitted “missing” documents relating to current guidance for paper filed applications.
While it is good that USCIS is digitizing and modernizing its adjudication processes to increase efficiency and accuracy, the ongoing shift from paper-filed applications to e-filing has some growing pains. The example discussed here is the (relatively) new guidance by USCIS in assembling paper-filed applications to maximize ease of scanning documents. (https://www.uscis.gov/forms/filing-guidance/tips-for-filing-forms-by-mail) In a reversal from traditional policy, USCIS now discourages applicants from using fasteners, hole punch, staple, paper clip, binder clip, or any other tool for attaching documents to one another when filing directly with a USCIS service center “as that may cause delays in scanning the documents into the electronic database systems.” As an unintended result of this new guidance, it appears that USCIS has been misplacing submitted application documents and issuing requests for further evidence (RFEs) asking for documents that had already been submitted. Our law firm has encountered a few of these types of RFEs. One recent example is an I-539 application to extend nonimmigrant status for an O-3 dependent which was filed concurrently with an I-129 petition for the O-1 principal where the I-129 was initially approved, then USCIS issued an RFE on the I-539 asking for copies of the applicant’s marriage certificate, the principal’s most recent I-797 approval notice, and the dependent’s passport, visa, and I-94. Needless to say, these were all submitted in the original submission.
In this case, we numbered all of the exhibits and provided an exhibit list after the attorney cover letter; separated all exhibits with colored “exhibit pages” clearly labeling each exhibit; and rubber banded together the entire concurrent I-129/I-539 filing with all enclosed evidence. Despite these concerted efforts to ensure that USCIS would see all of the evidence, we received the RFE for documents that were submitted in this application.
While it is understood that USCIS is digitizing and moving away from paper, and that this problem will be resolved once USCIS reaches its goal of allowing all forms to be filed online, USCIS’ mishandling of paper documents in the interim resulting from the guidance discouraging adhesion of documents is a problem that must be addressed. It is less than ideal for a supposedly reliable agency, and not a good first impression of America for many noncitizens, to lose documents in transfer from the mailroom to the scanner. Perhaps in the transitory period to e-filing, USCIS should continue to encourage applicants to fasten their applications with ACCO fasteners. In any case, it should enact workable policies in the interim to prevent loss of documents to minimize time and resource waste and counter completely avoidable and unnecessary RFEs and rejections.
Arthur Lee, Esq. Q&As:
1. The online query of PERM labor certification database is inaccurate
A reader asks:
I was laid off by the company. I heard that the company cannot file PERM application within half a year after layoff. Where can I check the current PERM status of each company?
Arthur Lee Esq. answers:
A company can file a PERM application within 6 months of a layoff or reduction in force. However, there are additional caveats when a company chooses to do so. If the company has had a layoff in the area of intended employment within 6 months of filing a PERM application, and the layoff involves the occupation for which the certification is sought, or a related occupation, then the company must disclose this on the application to Dept. of Labor. In addition, if such a layoff occurred in this 6-month period, the company must notify and consider previously laid off U.S. workers in the related roles for the PERM position for which certification is sought. A notification to a previously laid off worker in the same or related occupation must provide a full description of the specific job opportunities, include clear instructions, and invite the worker to apply for the position. Unfortunately, we do not believe that there is an online forum effectively showing which companies have filed PERM applications in real time. Although the filing of PERM is public record accessible through official FOIA (freedom of information act) requests, there does not seem to be an Internet website accurately showing in real-time which companies have filed PERM applications on what dates. I note that there is one website (H1B grader) which has a green card PERM labor certification database, but I have tried it out and it is inaccurate.
2. A showing of job applications in the United States is not normally required for an EB-1A petition.
A reader asks:
When the lawyer was preparing the EB-1A application, he asked to submit some job application evidence, which is probably my application record for finding a job in the United States. I’m currently working outside the US, and it’s not realistic to apply for jobs now. Since getting a green card is still far away, the law firm means that even a screenshot of the US job application record will be helpful. If there is no evidence of applying for a US job at all, the risk of RFE will increase in the future. I would like to ask, is this evidence really useful?
Arthur Lee, Esq. answers:
While I do not know the specifics of your EB-1A case, a showing of job applications in the United States is not normally required for an EB-1A petition. That being said, an EB-1A petition should include evidence showing that you will be continuing to work in your area of expertise and that your immigration will benefit the country. If you are currently working outside the United States in your area of expertise, that can serve as good evidence that you will continue to work in this area of expertise. If you have a long history of employment in the area of expertise, and you have maintained excellence in this area to this date, that may serve as good evidence as well. USCIS evaluates whether you will continue to work in your area of expertise through a look at the totality of your circumstances. For instance, if you have been an extraordinary musician, but have not been maintaining your practice of music and have been engaged in other fields—like say, accounting, in your recent history—USCIS might not be convinced that you are coming to the United States to contribute your musical talents, rather that you are coming here to make a living in a different field. If your lawyer is asking for evidence that you have applied to certain US jobs, it is likely that he/she believes that there is not enough evidence that you are able to engage in your field of extraordinary ability when you come to the US. If that is the case, then applying to US jobs in your field of expertise may be some useful evidence. Other, perhaps useful evidence would be your current work in your field of expertise regardless of location and an overall showing that you maintain a passion in that field that you will continue indefinitely.