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Major Shifts In Immigration Adjudications Locations And In Affidavits Of Support

by Alan Lee, Esq.

In this article, we will discuss the major changes involving relocations of adjudications as this appears to be greatly alarming a number of individuals who have been receiving transfer notices of their cases to other U.S.C.I.S. field offices and are wondering for what reason and what the news portends. We will also discuss two issues relating to I-864 affidavits of support, one a liberalization of the documentation rule for adjustment of status to permanent residence (I-485) cases and the other a possible expansion of liability for the I-864 affiant. 

1. Tectonic plates appear to be shifting within U.S.C.I.S. field offices in the adjudication of cases. On May 31, 2005, U.S.C.I.S. mandated that all I-90 replacement green card applications would henceforth be filed at one location in Los Angeles instead of at local district offices, service centers, or application support centers. 

Currently on the East Coast, thousands of employment based I-485 adjustment of status cases are being transferred back to the Vermont Service Center from district field offices to which they were earlier transferred by Vermont. Approximately 10,000 cases transferred to the New York City and 7000 to the Washington D.C. field offices have reportedly been transferred back to the Vermont Service Center to assess whether interviews can be waived under the most recent guidelines. Those were contained in the Service memo of January 5, 2005, on revised interview waiver criteria for I-485s, which included a list of situations previously requiring interviews which can now be waived -illegal aliens where there is a need to validate legal status other than lack of evidence of inspection, admission and/or parole, IDENT immigration violators whose cases will be held for officer review at the time of the adjudications, cases in which aliens have questionable qualifications, fingerprints rejected two times, Class A or B medical conditions, or where their cases feature second filings, apparent fraud, or "A" files not being able to be located in time for adjudication. In discussing such transfers the Washington office said that the criteria were that the cases had originally been transferred to the local office for adjudication, had not been scheduled for initial or rescheduled interviews, and were filed with the Service Center prior to January 1, 2005. 

New York City CIS has reportedly transferred substantial numbers of immediate relative family based cases that have already been interviewed and I-751 removal of conditional basis of residence in marriage cases to the California Service Center. The Washington D.C. office is also relocating some but not all of its I-485 "continued" cases (cases that were "continued" and not completed on the date of interview) to the California Service Center. The purpose of such transfers is to complete the adjudication of cases without further interviews. Although there are the differing views concerning the effect on cases being transferred to California with some envisioning denials en masse as many of the continued cases may have been held by examiners hesitant to issue denials, we believe that the move should (at this time at least) be considered good news as it will accelerate the adjudications and an officer at the California Service Center may have a different perspective on a case than the original examiner.

In further realignment news, the Texas Service Center is now assisting the Nebraska Service Center with asylum adjustment cases. As per the American Immigration Lawyers Association/Texas Service Center liaison meeting of October 3, 2005, approximately 20,000 cases had been transferred with file dates from January 2002-June 2002. The Texas Service Center was also data entering newly filed political asylum adjustment cases so that I-485 receipts with SRC numbers would be issued. The Nebraska Service Center's explanation is that the transfer of these cases is not just part of the agency's backlog elimination strategy, but also expected to be a permanent arrangement. The Nebraska Service Center and Texas Service Center will be partner service centers under what Headquarters is calling a "Bi-specialization" plan. Eventually, I-485 and other workloads still to be published will be worked only at the two centers while I-129s and other work loads still to be determined will be worked only at the California Service Center and Vermont Service Center. 

As it is oftentimes confusing to applicants to receive or otherwise obtain notices of transfers to other service centers and field offices, this small rundown of strategy within the agency will hopefully give rest to nervous minds. 

2. In a November 23, 2005, U.S.C.I.S. policy memorandum regarding I-864 affidavits of support, the agency has significantly liberalized the requirements for supporting documentation. For any affidavit of support in connection with an I-485 filed on or after November 23, 2005, the sponsor is only required to submit the tax return from the previous year instead of from the previous three years. The memo gives as example that a sponsor now would only have to provide the 2004 federal income-tax return. For I-485s filed before the date of the memorandum, in which officers encounter situations where the sponsor included the most recent tax return but not one or both of the two earlier returns, adjudicators are no longer required to issue a request for evidence (RFE) for the missing earlier returns. When the sponsor files a photocopy of the tax return but does not submit forms W-2 or 1099, an officer can accept such without issuing a "RFE" if he/she establishes that the information on the tax return is true and correct. By so stating, the Service memo appears to endorse acceptance of a photocopy of the tax return along with original W-2s or 1099s. To further point this up, the memo states that officers shall accept an IRS generated transcript as a true and correct copy of the sponsor's return and that it is not necessary for U.S.C.I.S. to request a missing W-2 or 1099 if the sponsor submits a transcript, rather than a photocopy of the tax return. Other documentation usually submitted with an I-864 such as employment letters, paystubs, or other financial data are now seen by the Service as only relevant for RFE purposes under three conditions: If the tax return reflects income below the poverty guidelines; if the record does not already contain additional evidence establishing that the sponsor meets the current income requirements; or if there is a specific reason (other than the passage of time) to question the truth of the income stated on the I-864 form or the accompanying documents. The memo further states that in the event the tax return and/or the evidence in the file does not establish that the sponsor meets the poverty guidelines, the adjudicator shall request current year income information and not additional information from the year the sponsor signed the form I-864. The memo ends by warning that local offices of U.S.C.I.S. are no longer free to set their own policies on whether to require submission of the form I-864 at time of filing or at the time of adjustment interview and that all applicants are now required to submit the I-864 form with their adjustment applications. 

Readers should remember that this memorandum is confined to adjustment of status cases and not to cases requiring consular processing. Unless an expansion of this memo is adopted by the Department of State, persons submitting I-864s for consular processing cases should continue to submit all three years along with other documentation to prove current ability to meet the threshold set forth in the poverty guidelines.

3. The case of Stump v. Stump from the U.S. District Court, Northern District of Indiana, provides instruction and caution to individuals who would flippantly sign an I-864 affidavit of support. The I-864 language in Part 7 makes individuals liable to the U.S. government, state or local agency or private entity that renders means tested benefits to the supported alien until the time that the alien becomes a U.S. citizen, permanently leaves the U.S., passes away, or works in this country for 10 years (40 quarters). Stump v. Stump seeks to further expand liability in a suit by the alien to force the affiant to pay for the alien's support at the promised 125% of poverty guideline amount under the theory that the alien is a third-party beneficiary to the contract between the affiant and the U.S. government. In the case, the alien (ex-wife) sued her former husband, a U.S. citizen, for financial support owing to her under the terms of the affidavit of support he signed. The district court calculated the poverty guideline at 125% for a party of one from the date of their separation to the present time giving the ex-husband a set-off for the amounts that the wife had since earned. To the ex-husband's argument that the ex-wife had not made a good-faith effort to procure employment, the court stated that such a failure did not end a sponsor's obligation to provide support. The court then entered judgment in favor of the ex-wife, noting that the statute outlines the events that terminate the ex-husband's obligation, and until one of those events transpired, the ex-husband had a continuing duty to maintain the ex-wife at 125% of the federal poverty level. 

In the same manner that the ex-wife could sue her ex-husband, it would appear under the logic of the decision that other aliens can bring suit against their affiants regardless of the relationship. It should of course be noted that Stump v. Stump is only a district court and not appellate court ruling and may certainly not represent the last word on liability to the alien who wishes at any time before the conditions transpire to enforce the support obligation against a sponsor or co-sponsor. 

2005 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.