QUESTIONS SUBMITTED FOR NSC CONFERENCE CALL

REFUGEE/ASYLEE ISSUES
FEB. 28 2008

What’s New:

The NSC welcomes Marilyn Wiles as its new Deputy Director. She comes to
us from the Department of State. Neil Jacobson, who has been acting as the
Deputy for the last year, is now transitioning into the Chief of Staff position.

Probably the most significant new item is the February 4th memo concerning
FBI Name Checks pending for more than 180 days. There is a question
today on the topic and we’ll talk about it a bit more then.

1) I-765 Employment Authorization Documents: How can we request that a

duplicate denial notice for an EAD be sent to our office? One of our
client's EADs was denied, and she called Customer Service (the 800 #),
who said a denial notice was sent to our office with a reason for the
denial described on the notice. However, we never rec'd the denial notice
and are unaware of the reason for denial, and Customer Service wouldn't
tell the client the reason or send her a denial notice directly.

They can send their inquiry to the address below. We can order the file and
re-send the denial notice.

USCIS
P.O. Box 87172
Lincoln, NE 68501-7172 (This comes to the CCS Supervisor)

2) I-131 Refugee Travel Documents for Lawful Permanent Residents: At the

time of completing form I-131 for Lawful Permanent Residents (based on
ASY/REF), what should we fill out under application type (question 2.):
“a. I am a permanent resident or conditional resident of the United States
and I am applying for a reentry permit.”, or “b. I now hold U.S. refugee or
asylee status and I am applying for a refugee travel document.”? If
answering “a”: will the document then be valid for 2 years instead of 1
year?

Any person who is currently an LPR is eligible for a two-year Reentry Permit.
A person who was originally admitted/granted Refugee or Asylum status,
and may or may not be an LPR, is eligible for the one-year Refugee Travel
Document.

A person originally admitted/granted refugee/asylum status who is now an

LPR is eligible for either document. It does not make a difference to USCIS
as far as which document a person requests. We occasionally receive
comments from applicants that certain countries will not accept RTDs, or
Reentry Permits, depending on the individuals’ status so an applicant may
want to inquire of the country they are intending to visit to see if there are
any restrictions on the type of travel documents a visitor uses.

I-131 Refugee Travel Documents for Derivative Asylees/Refugees: Do

derivative asylees have the same restrictions as the principal
Asylee/Refugee in terms of traveling to their country of origin?
Derivative asylees who return to their country of origin are evaluated
differently. Because they become asylees based on their relationship to the
principal applicant, they do not need to independently establish asylum
eligibility. Therefore, we would not terminate a derivative asylee's status
based on reavailment.

3) I-730 Asylee Relative Petition: Denial: What do you recommend doing in

a case where an I-730 was denied due to failure to respond to an RFE ?
On this particular case, an asylee applicant, he was outside of the
country when the RFE was sent and no copy was sent to the attorney of
record. When the client returned to the US, we were informed of the
denial (7 months after it had happened).

Answer: Generally, if an I-730 is denied for abandonment, there is a higher

threshold for reopening the 730. The petitioner must show that (1) the
requested evidence was not material, (2) the required evidence was
submitted initially or was complied with during the allotted time, or (3) the
request for evidence was sent to an address other than that on the petition
or notice of representation or that the petitioner advised Service of change of
address prior to request being sent and Service did not use the proper
address.

On this particular case, if a G-28 Notice of Representation was in the file

and the Request for Evidence was not sent to the attorney of record, the
petitioner could file a motion to reopen indicating those facts and providing
all the requested evidence. Even though the petitioner’s motion would
technically be late, the Service could overlook the late filing of the motion
due to a potential Service error regarding the proper address on the RFE.

The case was originally filed for spouse and children. The wife’s case was
the one closed. The children’s cases (which were not closed) haven’t had
any movement at the US Embassy in Cairo. Will this have anything to do
with the mother’s case being closed for abandonment?

Answer: No, the fact that the mother’s case was closed should not affect
the children’s cases unless the children are step-children of the
petitioner and the wife is the biological parent of the children.

We are considering filing a new I-730, before the 2 year deadline. Could
we request -after the case is transferred from NVC to the Embassy- that
all cases are interviewed together with the children?
 Answer: The Service, NVC, and the Embassy attempt to keep family
member petitions together so the Embassy can interview the family
together.

Would you rather recommend filing a Motion to Reopen of the old case,
even when it’s been more than 30 days since the denial?

Answer: If the two-year filing deadline has not passed, the petitioner can
choose to file a new petition or motion to reopen if a potential Service
error occurred. If the petitioner believes a proper G-28 was filed with the
petition but does not know that a proper G-28 was filed then it may be in
his best interest to simply file a new petition because if there was no
Service error, a late filed motion will simply be denied.

4) I-730 Asylee Relative Petition: Change of address after NSC approval:

What will be the best way to communicate with the US Embassy to notify
of a change of address of a beneficiary of an approved I-730 Asylee
Relative Petition, when this change happens after NSC has sent the
approved case to National Visa Center?

It’s our understanding that the US Embassy in Cairo is interviewing all

Sudanese Visa 92/93 cases (derivatives of asylees or refugees) through
their Desk in Karthoum. The frequency of these interviews seems very
low and we’ve seen cases being processed faster in Cairo, Egypt, so most
of our clients request this as the post of preference.

What can we do to request that the interview is scheduled in Khartoum,

due to transportation problems for the family, when this was originally
requested (on I-730 form) to take place in Cairo?

We’ve tried communicating via email, with no response from the

Consular Section of the US Embassy. Does NSC have a liaison with DOS
for these cases?

Answer: These questions are better answered by the National Visa Center.
If the petitioner needs to change an address or change a Consulate, he/she
needs to contact the NVC.

The following contact information was taken from the National Visa Center
website.

If you have specific questions about a case, please contact the NVC. E-mail
is the NVC’s preferred method of communication.

By E-mail

The NVC’s e-mail address is NVCINQUIRY@state.gov.

In order to ensure a prompt response:

• The Subject Line of the e-mail should be the relevant NVC Case
Number.
• Provide the applicant’s name and date of birth and the petitioner’s
name and date of birth.
• If you are an attorney, include the name of the law office requesting
the information.
• If the petition is employment-based, include the
company/organizational name.
• Reference only one case per e-mail.

24-hour Information

An automated recorded message system is available twenty-four hours a

day, seven days a week to answer case status inquiries (603 334-0700).

Note: This service requires the use of a touch-tone telephone.

Operator Assistance

Telephone operators are available to respond to more in-depth inquiries.

Hours: Monday through Friday from 7:30 AM to 12:00 AM (EST)

Tel: (603 334-0700).

Note: This service requires the use of a touch-tone telephone.

By Mail

National Visa Center

Attn: WC
32 Rochester Ave.
Portsmouth, NH 03801-2909

5) I-730 CASE or HUMANITARIAN PAROLE? What can be done for the

beneficiary spouse of an I-730 Asylee Relative petition if she gets
pregnant and has a child (from the petitioner, of course) after the
petitioner was granted asylum –therefore this new child is not considered
a derivative- but before she completes the Visa 92 process at the US
Embassy. Does the US Embassy have the authority to parole the
newborn child for him to join the rest of the family in the US?

Answer: If the child was in utero at the time of the asylum grant the
regulations provide benefit to that child as a derivative under 208.21(b). If
the child was not in utero and the relationship with the child was after the
asylum grant, then a I-730 petition can not be filed on behalf of this child.
The U.S. Embassy does have the authority to grant a humanitarian parole
and that would need to be addressed with the U.S. Embassy.
6) I-730 FOR ADOPTED CHILD, APPROVED IN THE US, DENIED AT THE
US EMBASSY: If an I-730 case for an adopted child, approved by NSC, is
later denied by the US Embassy, claiming § 212 (5) A (petitioner
relationship did not exist when asylum was claimed), can the case be re-
determined by NSC and later re-sent to that Embassy (DOS) to re-open
the case? And if so, in how long -after the denial in the Embassy- will the
case be back at NSC?

Answer: There is a process in place for handling 730s that are returned
from the consulate. NSC reviews the case and issues a Notice of Intent to
Deny to the petitioner to give the petitioner an opportunity to rebut the
adverse information discovered by the U.S. Embassy during visa processing.
The NSC has no control over the length of time it takes for a case to be
returned to NSC after the U.S. Embassy refuses to grant a visa. The
embassy returns the case to the NVC. The NVC then sends the case to us.

We understand that no appeal can be submitted in such decisions, but

the reason of the denial seems to be unjustified and we’d like to know if
there’s another way to address the Embassy’s reasoning before is sent
back to NSC.

Answer: No. See below.

Background of the case

The child was legally adopted in Cameroon (as it was shown in document
from the High Court of that country, issued before the grant of asylum of
the principal asylee) but the Embassy now claims that the document
wasn’t properly registered, although it was signed by the Registrar in
Chief of that Court.

After DOS denied the case for the adopted child, per client’s request, the
same Court issued a ruling acknowledging that previous affidavits signed
by the child’s biological parents (resolutions for traditional adoptions)
should be sufficient to prove the relationship, by finding that the
adoption under the native Laws and customs of his [the Bafut] people
legally recognized by the Court.

Southern Cameroon’s High Court Law, 1955

§ 27. (1) Application of Native Law (…) “the Law empowers the High
Court to observe and enforce the observation of every native laws and
customs which are not repugnant to natural justice, equality and good
conscience, nor incompatible with any written laws in force for their time
being”.

It has proven to be impossible to address issues like this on a timely

manner, as the communications with most US Embassies’ Consular
sections are not bilateral.

We wonder if at the time of this review, the Consular officer (or USCIS
 employee at DOS post) gets to consult with NSC before issuing the denial
and if it gives the opportunity to the applicant to submit additional proof
of the relationship before the case is closed.

Answer: No. There is already a process in place for the consulate to

return a 730 petition to NSC via NVC if the consulate has refused to
issue a visa. The NSC reviews the consulate’s findings and issues a
Notice of Intent to Deny to the petitioner giving the petitioner the
opportunity to rebut the adverse information discovered by the consulate
during the visa processing investigation.

7) Sometimes clients move right before a RFE letter is sent to them, and
they never receive the RFE, but only learn it was sent to them through
the Case Status Online system. Is there any way for examiners at service
centers (either as NSC policy or HQs policy) to scan these RFE letters
into the CIS system so that Information Officers in local CIS offices can
print out a copy for an individual or attorney with a G-28 who has an
Infopass appointment? (It is often hard for attorneys who don’t have a
G-28 on file initially – thus RFE is sent to applicant - to get SCs to send
out RFE letters that clients have not received, and to get a copy in a
timely manner.)

Answer: At this time, NSC does not have a policy for an examiner to scan
RFE letters into a CIS system so that Information Officers in local CIS offices
can print out a copy for an individual or attorney with a G-28 who has an
Infopass appointment. This suggestion will be forwarded to HQS, SCOPS for
future consideration in the development of operational policy and in the
design of computer information systems as USCIS transforms into an all
electronic data/filing system. It remains the responsibility of applicants to
keep USCIS informed of their current addresses and to arrange for the
forwarding of their mail to their current address.

8) RFE letters: Since examiners can now give a shorter response time than
87 days, under what circumstances will examiners only give a 30 day
response deadline? (And if applicant or attorney has not received the
RFE letter, it may be crucial to get a copy fast if only 30 days is given,
hence the need for scanned RFE letters.)

Answer: The circumstances in which an examiner may give a 30 day

response deadline are limited to missing initial evidence. Examples for an I-
485 application would be a completed and signed Form G-325 Biographic
Information sheet, photographs of the applicant, copy of an identity
document, and a copy of I-94 or Asylum status letter showing eligibility for
the adjustment benefit. Examples for I-730 petition would include would
include photographs of the beneficiary, proof of petitioner’s status, birth
certificate for child’s petition, marriage certificate for spouse’s petition,
divorce decree/death certificate for previous spouse(s), and adoption decree.
We realize that birth documents and/or medical documents may take longer
to obtain and therefore may give an 84 day response deadline.
 9) Please advise how you are interpreting the new Michael Aytes memo of
February 4, 2008, on Revised National Security Adjudication and
Reporting Requirements. We have communicated with Nebraska on
some cases that should benefit from the memo, specifically refugee
adjustment of status cases, but have received various responses
suggesting that there still may be significant delays in how these cases
are processed. Will these cases be prioritized?

Answer: New guidance has been issued regarding I-485 with pending FBI
name checks. Where the application is visa available and otherwise
approvable and the FBI name check request has been pending more than
180 days, the adjudicator may approve the I-485 and proceed with card
issuance. NSC is working these cases but because of the large volume we
anticipate it will take 30-60 days to complete. Please inquire after April 30th
if your case meets the above guidelines and you haven’t received a decision.

10) How do we know when the name check was started to know
when 180 days have lapsed? Can we assume that CIS sends the names
to the FBI fairly shortly after receiving the I-485s?

Answer: NSC, USCIS submits I-485 Asylee and Refugee applicant names to
the FBI for name checks shortly after receipting in the I-485.

NANCY HALE’s Questions Added

11) I-485s: Please provide an update on Liberian refugee green card cases – when
will the hold be lifted? If lifted or if it will be lifted in the near future, give the estimated
time it will take for examiners to go through the thousands of these applications to have
new biometrics/prints scheduled and cases reviewed for adjudication.

12) I-485s: Now that CIS policy will be to adjudicate I-485 cases where FBI Name
Checks have been pending for more than 6 months, what plans are there to expeditiously
review these pending cases? Please estimate the number of such refugee and asylee I-485
cases with name checks in excess of 6 months that are pending at NSC.

13). I-485s: In a prior teleconference, issues relating to the frequency of incorrect

dates of birth on I-94s for refugees (particularly Burmese) was discussed. There was
mention that CIS HQs might come out with a policy memo on the use of bone scans to
prove correct/more accurate dates of birth. Please provide an update on the status of that
policy memo or any other policy memo or review relating to these frequent DOB
problems. (One CBO was recently told by a UNHCR employee at a Thai refugee camp
that many Burmese refugees there don’t have birth certificates, and parents often
incorrectly guess the DOB of their children. There is an initial registration at most camps
where UNHCR personnel get estimated ages of refugees who don’t know their exact
DOB, but at later registration they are supposed to get a more accurate DOB – which still
may result in incorrect DOBs.)

These incorrect DOB issues often have to be addressed at the I-485 stage because
the I-102 form is now NOT fee waivable, and refugees can’t afford to file the I-102. Is
HQs considering making this form fee waivable?

14). I485s: One CBO has seen an increasing number of cases where applicants are
being asked to repeat the medical exam because there is some information in the “A” file
indicating the applicant suffered from prior depression, possible suicidal thoughts, etc. –
but this information is allegedly found in the JVA or CBO overseas processing entity’s
pre-screening application or “casual” notes in the overseas portion of the refugee’s files.
RFE letters have then indicated that the overseas civil surgeon failed to address this issue
and that the applicant needs to have a CS in the US assess whether s/he is a danger to
herself or others. Why should the applicant be penalized for the failure of the CS
overseas to address this issue? (Since most CSs in the U.S. take the position that they
have to do an entire medical – including HIV, TB testing, etc. – when these mental health
issues arise, the cost to the applicant can be substantial.) In addition, since
refugees/asylees are not subject to the public charge requirements, shouldn’t the only
issue be whether the applicant is a danger to others (and not whether s/he is a danger to
herself/himself)? If there is nothing in the overseas paperwork that indicates the person
was ever a danger to others, but may have only been depressed and had thoughts of
suicide, why should this be “rehashed” at the I-485 stage?

15). I-485s: One CBO has increasingly had problems when I-485 refugee or asylee
cases are sent to a local CIS office for an interview, the case is then approved, but the
local CIS office sends the file back to the wrong Service Center. (Per one local CIS
office, clerks return files based on the receipt number indicating SC. However, with bi-
specialization, cases receipted in one SC may be worked on at another SC). This has
created major problems with card production – the wrong SC gets the file back and the
card is never produced and often shipped back to the NRC. Is there any remedy to this
problem by NSC or HQs? With the biometric system, why should this even be a problem
anyway – does the SC have to have the physical file to produce the GC or just
notification that the I-485 was approved at interview?

16. I-485 Asylee with Nunc Pro Tunc issues: Now that I-485 asylees with NPT
issues/problems are supposed to file the I-589 application before filing the I-485, has the
Service made this information public in any manner? Given processing timeframes,
would it be safe for a NPT asylee to file the I-589 and then shortly afterwards file the I-
485? If the I-589 is then granted before the examiner reviews the
I-485, will the NSC send a RFE letter asking for proof of NPT asylee award or will the
I-485 just be denied – even if the CIS computer shows NPT grant of asylum?

17. I-485s: Please provide an update on the types of cases being held in abeyance on
“material support” issues. If CBOs do an inquiry on a specific case which has been
pending past the processing time frames and a MS issue is the reason for the delay, are
NSC examiners authorized to confirm that the reason for the delay is a MS issue? In
addition, HQs affirmed on 1/29/08 that motions to reopen or reconsider previously denied
I-485s based on some of the changes in the MS laws can be filed with Service Centers.
Will those motions be accepted without payment of fee, and should they be addressed to
a specific division or individual at NSC who may be specializing in MS issues?

18. I-730s: One CBO recently filed an I-730 which was sent to the TSC because
petitioner lives in FL. However, the I-730 was receipted by the NSC with no prior
indication to the attorney that TSC had done this. Was this because the petitioner’s A file
is at the NSC for I-485 purposes? (Fortunately, the petitioner met the 2 year from DOE
filing for the I-730, but it was close by the time the petition was sent from TSC to NSC.
However, shouldn’t the receipt date indicate the date the I-730 was received at the TSC
and not the NSC – which was not done in this case?)

19. I-730s: One national CBO has indicated that many Liberian children born in
refugee camps outside Liberia who are the beneficiaries of Affidavits of Relationships
(AORs) by parents already in the US are having problems proving a well-founded fear of
persecution for AORs, and are being denied admission to the US as refugees. OPE-
Ghana has supposedly encouraged parents to file I-730s for these AOR denied children
even though the 2 years from date of filing has passed. (Parents often do not file I-730s if
the AOR process has been initiated because that process, in many instances, is faster than
the I-730 process.) Please comment as to whether cases of this sort that are filed after the
2 years are likely to be accepted as a humanitarian exception to the 2 year deadline.
Please also indicate in general the types of situations where humanitarian exceptions have
been made to the 2 year deadline.

Loan Huynh’s Questions added

20. During the October 25, 2007 Refugee/Asylee Product Line conference call
with NSC, NSC confirmed it was no longer facilitate the nunc pro tunc I-589
process for asylees who have aged-out or married. Therefore, instead of mailing
an RFE for the I-589 and holding the I-485 pending its grant of a newly filed I-589
(as had been specified in the Adjudicator’s Field Manuel), a denial is now
issued. There has not been any formal notice of this change in procedure and
many applications have since been denied based on this change. Will NSC be
issuing a formal notice regarding this policy? Since there has been little notice
regarding the new procedure, will NSC allow applicants whose I-485s have been
denied to either re-open or re-file their I-485s without a fee so that they do not
have to unnecessarily pay twice?

21. The email address, NSCLawsuit.Asylum@dhs.gov is now a non-

deliverable email address. Is there a new email address for NSC regarding
inquiries about the status of pending asylee I-485s?
22. Is there a policy to conduct separate and/or additional background checks
for Iraqi nationals seeking asylum in the U.S. who have been
persecuted/targeted for persecution as a direct result of their collaboration and
work with the U.S. military, U.S. businesses in Iraq, and the Iraqi government?
Members have reported that decisions in these types of cases have been
delayed for an unusually excessive length of time.

23. Is there a contact number, email, or fax number to check on the status of
pending asylum cases which are said to be pending at "headquarters?" If contact
information is available, please provide.

24. What does it mean when an asylee adjustment case has been held up
because of "material support" security checks? Does it mean that some
evidence of material support has surfaced and is being investigated, or can it
also mean that CIS is just waiting (as in the case of name checks) for some
government agency to indicate that the individual is clear of material support
issues?

Pursuant to the recent Aytes memo issued regarding name checks, if there is no
response from the FBI within 180 days, adjustment cases will be adjudicated
while the name check remains pending. Is this also true of cases now being held
up by the material support checks?

25. NSC is currently processing asylee I-485 applications filed in October

2006. Are there any plans to decrease the processing time for these
applications?

26. NSC is currently processing I-730 petitions filed on or before October

2006. The long processing time possess dangerous risks for family member still
abroad. Please advise if there are any plans to reduce the processing time. Is
there any process for requests for expedites where there is imminent harm to
beneficiaries of pending I-730s?

27 When a foreign national’s asylum case has been referred to the

Immigration Court, that individual is required to file a copy of the asylum
application form, an EOIR-27, and a copy of instructions given to them by ICE at
the Master Calendar Hearing with the NSC. The NSC then transmits a receipt
notice, and is supposed to schedule biometrics in the matter. This is
consistently not occurring. Is there a system in place to catch these other then
liaison? There have been reports that many applicants are getting caught up in
situations where their Merits Hearing is quickly approaching and they still have
not been fingerprinted.

Molly McKenna’s Questions added

28. . In refugee I-485 cases, our affiliates often receive “Billing Notices” from the
NSC. The notices state: “The above application or petition has been received.
Your application was received without the necessary fingerprint fee. Under 8
CFR 103.2(e)(4)(i), this fee of $80 U.S. Must be submitted along with the filing
fee for the application/petition. If this office has not received the fee within 87
days, your application will be considered to be abandoned…”. As you are aware,
refugee I-485 applicants are not required to pay the biometrics/fingerprint fee.
How does the NSC advise that applicants respond to these “billing notices”?
Does the NSC want a written response stating that refugees adjusting do not pay
the fingerprint fee (as per USCIS instructions online, and Form G-1055)?
Something different? Please advise.

29. Issues with Defensive I-589s: Applicants seeking asylum before the
Immigration Court must submit the first 3 pages of the I-589 application for
asylum form to the NSC in order to have an ASC appointment scheduled. In this
practitioner’s experience, I receive some confirmation that the documents were
received by NSC but no ASC appointment is scheduled. Calls to NCSC are
ineffective (as they cannot release information regarding asylum cases) and they
refer me to the local Asylum Office, which does not have the application. In
many cases I have resent the request for an ASC appointment to the NSC as
many as 3 times with no response. In almost every case I must use my local
AILA liaison to have the ASC schedule the appointment. (a) Is there any way to
ensure applicants are scheduled for appointments? (b) And if there is any
lapse/delay in getting the ASC appointment scheduled, who should be contacted
to correct this problem?