USCIS Background Checks Can Cause Processing Delays
The waiting period for any U.S. Citizenship
and Immigration Services (USCIS) filing
can be unnerving and there always seems to be pending cases that fall outside the
prescribed processing period. While the USCIS Service Centers update their
internet-posted processing dates rather frequently, these dates are of little help
when they’ve passed by your application or petition. While we can never truly
predict why some cases take longer for processing than planned, a recent USCIS publication
sheds a bit of light on one possible explanation: background checks.
The USCIS performs background checks, of various complexity, on every petition or
application filed. These background checks seek to bolster not only national
security, but to ensure the integrity of admitted foreign nationals. There
are three “top level” checks most commonly used by the USCIS. These three
are the FBI fingerprint check, the FBI name check (both of which compare a beneficiary
or applicant to FBI records), and the IBIS name check which compares a beneficiary
or applicant to several other databases.
If any enlisted “first level” check reveals ambiguity about the identity of the
subject, processing can be delayed. Such a delay is not an indication that
a given filing will be denied; it most frequently only causes minor slowdowns in
case processing. Given the sheer magnitude of the USCIS’ workload, such delays
are an inevitable byproduct of case processing.
These delays are but one possible explanation for overdue processing. While
not every delay can be attributed to background checks, this recent publication
gives a bit of insight to the USCIS process.
Rescheduling Indian Consulate Interview Appointments
Online
On October 5, 2006, David C. Mulford, U.S. Ambassador to India, delivered
a statement regarding the state of visa processing at the Consulate in India.
Ambassador Mulford stated that in light of the U.S. Embassy in India’s commitment
to reducing the waiting time for a visa appointment, people who already have a visa
appointment may visit the Embassy’s appointments website at
http://www.vfs-usa.co.in to advance the schedule of their appointment.
The website gives the following information regarding rescheduling appointments:
§ You can reschedule your appointment only ONCE.
If you wish to reschedule a second time, you will need to first cancel the existing
appointment and then schedule a new appointment.
§ You cannot reschedule your interview appointment to
an earlier date unless rescheduling to a priority appointment. If you wish
to reschedule to an earlier date you will have to cancel the existing appointment
and schedule a new appointment after reentering all the information again.
§ If you wish to cancel your appointment, you can cancel
a maximum of three times. After your third cancellation, your receipt will
be deactivated for 90 calendar days. You will not be able to take a subsequent
appointment during that period.
§ You must appear for an interview within 1 year (365
days) from the date you purchased your fee receipt from HDFC Bank. If you
do not appear for an interview within 1 year after the purchase of your fee receipt,
it will no longer be valid.
§ You can reschedule or cancel an appointment up to 2
working days before the date of the interview (5 working days where the interview
has been scheduled in Mumbai).
The Embassy has appointment openings available in the near term at all Consulates
(in Calcutta, Chennai, and Mumbai). Regular visa interview dates in regional
languages, however, are unavailable, and the availability of visa appointment dates
is still unpredictable. Those with an immediate need for travel should plan
early and take advantage of the current availability of visa interview slots.
November 2006 Visa Bulletin: Good Progress Almost Across the Board; Special Schedule
A Quota Will Be Met Soon
VISANOW has been very pleased to see fairly good movement across the board for all
employment-based categories despite announcements in prior Visa Bulletins that progress
would slow down significantly. This month, the U.S. Department of State (DOS) notes
that demand for immigrant visa numbers from the USCIS has not been as heavy as anticipated.
Still, the DOS warns that retrogression is still possible as the dates advance and
the number of potential applicants increases.
In May 2005, a bill was passed providing for the recapture of 50,000 employment-based
immigrant visa numbers that went unused in Fiscal Years 2001 through 2004 and making
these numbers available to a special, set-aside category for Schedule A workers
and their dependents. “Schedule A” refers to a certain category of occupations for
which there is an acknowledged shortage in the U.S., meaning that a PERM labor certification
is not required in order to prove that there are no willing, qualified U.S. workers
available for the positions. Currently, this schedule includes only registered nurses
and physical therapists.
The DOS expects that this quota will be met in November 2006. For now, they have
established a cut-off date of October 1, 2005, in order to control the use of the
remaining numbers until the USCIS and the DOS verifies that all 50,000 numbers have
been used. Once the quota has actually been reached, the Schedule A category will
be removed from the Visa Bulletin and the applicants who did not fall under the
quota will be moved to the third employment-based preference (EB-3) category.
The concurrent filing of Form I-485, Application to Register Permanent Residence
or to Adjust Status, with an immigrant visa petition under the Schedule A quota
will be allowed until the November 2006 bulletin takes effect (i.e. applications
will be accepted until October 31, 2006). Nurses and physical therapists with a
pending Form I-485 application will be able to apply for work and travel authorization
based on this filing until their priority dates becomes current and their green
cards are granted.
|
Employment-
Based
|
All
Chargeability Areas Except Those Listed
|
China
|
India
|
Mexico
|
Philippines
|
|
1st
|
C
|
C
|
C
|
C
|
C
|
|
2nd
|
C
|
15APR05
|
1JAN03
|
C
|
C
|
|
3rd
|
01JUL02
|
01JUL02
|
22APR01
|
08MAY01
|
01JUL02
|
Retention of an Older Priority Date through
Multiple I-140 Applications
There is some good news for those employers, and their employees, who wish to recapture
an earlier priority date when filing a subsequent labor certification under a different
Employment Based category.
If an employer files a labor certification application on behalf of an employee
that falls in the EB-3 category and later files a labor certification application
that falls in the EB-2 category, it is still possible to retain the priority date
of the older application. If the older labor certification application is approved
first, the employer will then file Form I-140 on the employee’s behalf. When the
I-140 is approved, it sets the employee’s priority date and EB classification. If
another labor certification application is then filed and approved, even if it is
in the EB-2 category, the employee will still be able to request the priority date
of the previous I-140 application. The employer must file a second I-140 on behalf
of the employee requesting retention of the earlier priority date.
It is important to note that you must have the first I-140 approved, before filing
for a second I-140 and requesting the older priority date.