United States: USCIS To Begin Interviewing Employment-Based Adjustment Of Status Applicants

Last Updated: September 6 2017
Article by Eric S. Bord and A. James Vázquez-Azpiri

Phase-in period to begin on October 1, 2017.

US Citizenship and Immigration Services (USCIS) announced on August 28 that, starting on October 1 of this year, it will expand the in-person interview program for persons seeking permanent residence or green card status in the United States.
The expansion of the in-person interview program will cover the following classes of green card applicants:

  • Form I-485 adjustment of status applicants whose green card eligibility is grounded in an approved employment-based I-140 immigrant petition
  • Refugee or asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and seek to join a principal asylee/refugee applicant

With this expansion of the personal interview program, green card applicants who have a pending I-485 or I-730 should expect to be called into a local USCIS office for a personal interview before the application/petition can be approved. The obvious effect of this expansion is that substantial delays will occur in I-485 and I-730 processing. USCIS Service Centers or other USCIS offices adjudicating these applications/petitions will now have to transfer them to the USCIS local offices where the in-person interviews will be held; the scheduling of such interviews will depend on the local office's staffing and capacity to handle the surge in new work.

The expansion of the interview program is subject to a "phase-in period" after October 1 that has not been clarified by the USCIS. It is therefore not clear when such interviews will begin to be held.

Reason for Expansion of the In-Person Interview Program

The stated reason for this action is to comply with US President Donald Trump's Executive Order 13780 (Protecting the Nation from Foreign Terrorist Entry into the United States), which sought to prevent the admission to the United States of certain nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The authority for this step appears to be the provision of the Executive Order that requires US immigration agencies to implement "Uniform Screening and Vetting Standards for All Immigration Programs." This provision commands the agencies to establish a program to identify individuals who seek to enter the United States on a fraudulent basis; who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States; or who present a risk of causing harm subsequent to their entry, and mandates that such a program include the development of "a uniform baseline for screening and vetting standards and procedures, such as in-person interviews[.]"

Although the USCIS and its predecessor—the Immigration and Naturalization Service (INS)—have always enjoyed the discretion to hold personal interviews of green card applicants in both categories, such interviews were commonly waived, and the majority of such applicants were granted permanent residence without undergoing a personal interview. Typically, interviews of employer-sponsored I-485 adjustment of status applicants are held only when a personal issue—such as a criminal conviction or a "hit" against a security database affecting the applicant's statutory immigrant eligibility—is present. The interview waiver policy was reviewed and refined on various occasions from 1992 to 2005 with USCIS requiring interviews in situations that would "actually benefit from the special attention of an interview."1 USCIS already routinely conducts background checks on green card applicants, who are fingerprinted and checked against various government security and criminal databases prior to adjudication of their applications. In addition, employment-based I-485 applicants, who are by definition already in the United States, typically undergo a US Department of State security review at the time of visa issuance, as well as a Customs and Border Protection inspection at the time of admission into the United States.

Scope of the Expansion

Although Executive Order 13780 was concerned only with nationals of certain countries, it appears that the USCIS intends to conduct interviews of all green card applicants that fall into the above categories—regardless of citizenship or nation of origin.
At the moment, it is not clear if dependents (spouses and children under 21) of the principal I-140 beneficiary will also be required to attend a personal interview. Traditionally, attorney representation at personal interviews of this type has been permitted, and there is no reason at present to believe that this will change. In the course of the interviews, USCIS officers will be given an opportunity to "verify the information provided in an individual's application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States."

Takeaways

The expansion of the personal interview requirement to employment-based adjustment of status applicants and consequent delays at local USCIS offices may result in an increase in the number of immigrant visa applications filed at US consulates overseas. This process also requires a personal interview, but may result in a faster grant of permanent residence.

Footnotes

1 US Citizenship and Immigration Service, Inter-Office Memorandum (January 5, 2005) from William Yates, Associate Director of Operations; "Revised Interview Criteria for Form I-485 Application to Register Permanent Residence or Adjust Status"

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

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