US Update: USCIS to Require Interviews for Employment-Based Adjustment of Status Applications as of October 1

As of today, October 1, 2017, United States Citizenship and Immigration Services (USCIS) will mandate an in-person interview for any individual adjusting from an employment-based status to permanent residency (Form I-485 adjustment of status interviews). The requirement will also take effect for family members of refugees or asylees applying for derivative refugee or asylee status (Form I-730 refugee/asylee relative interviews).

USCIS currently requires interviews for family-based green card and naturalization adjudications, whether that potential beneficiary is applying for adjustment of status in the US or undergoing consular processing abroad. However, the interview requirement is generally waived for the employment and refugee/asylee categories. This new policy prohibits any additional waivers.

USCIS’s stated goal in conducting in-person interviews is to discern security risks and prevent fraud. Acting USCIS Director James W. McCament claims that this shift in policy is part of the Trump administration’s “more robust screening and vetting procedures for individuals seeking immigration benefits to reside in the United States.” This reflects a reference in Executive Order No. 13780, 82 Fed. Reg. 13209, which instituted the travel ban. (“Protecting the Nation from Foreign Terrorist Entry into the United States”, March 6, 2017). USCIS now claims that conducting in-person interviews will provide its officers with the opportunity to verify information in each individual’s application, discover additional information relevant to case processing and determine the credibility of the individual applying for a green card.

Critics correctly note that there is no pervasive fraud in the employment-based and refugee/asylee adjudications. Additionally, the fact that the beneficiaries are already in the US and are continuously subjected to fingerprint screening and invasive security checks, coupled with the new I-485 Supplement J to confirm the continued presence of a bona fide job offer, make this policy change unsupported by the facts.

As a result of this new directive, we will likely see over 100,000 additional USCIS in-person interviews per year, undoubtedly lengthening processing times with respect to employment and refugee/asylee-based petitions for permanent residence, particularly since USCIS is already taking an extended period of time to adjudicate a myriad of other immigrant and nonimmigrant petitions and applications. In the employment-based context, the harshest consequences will likely be considerably increased wait times to finalize green cards. The policy change will not affect processing of I-140 petitions or EADs (employment authorization documents) issued based on pending green card applications. Therefore, the change should not impact status or work authorization within the US, unless the increased interview workload across USCIS eventually impacts adjudications in other areas. If there is a future expansion into other categories, as USCIS’s August 28, 2017 press release appears to suggest, the impact could be more drastic.

The applicant should prepare for the interview by ensuring an excellent comprehension of the particular immigration benefit he or she is applying for. Additionally, the applicant should know why they are eligible for the benefit. In the employment-based context, the applicant must be able to articulate the employer, the position offered (including specific job responsibilities, compensation, location, etc.), and his or her qualifications. The family member of a refugee or asylee must be able to articulate the basis for their relative’s refugee or asylee status and be able to establish the family relationship. This is especially true in establishing the bona fides of a marriage.

USCIS is engaging in “a multiphase approach” that will likely mandate in-person interviews for others applying for several other types of immigration benefits. However, the present focus is clearly on those seeking permanent residence.

By LeClairRyan, US, a Transatlantic Law International affiliated firm. 

For further information or for any assistance regarding US labor and employment law please contact James Anelli at uslabor@transatlanticlaw.com

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