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USCIS announces that it will Begin Conducting Interviews for Employment-Based Adjustment of Status Cases

U.S. Citizenship and Immigration Services (USCIS) published a notice on August 28, 2017 announcing that permanent residence (“green card”) case based upon offers of employment will as of October 1, 2017 be subject to in-person interviews at local offices before approval. This is a substantial change from historic policy over the last 20 years or so, where such interviews were rare – normally only where there was some complication (such as a prior criminal issue) or a few cases randomly selected for interview for “quality control” purposes.

The change will also apply to relatives of refugees and asylees in the US who are trying to join their principal refugee/asylee relative.

It wasn’t at all clear from the announcement whether this practice will apply to case already on file and pending, or only to cases filed starting October 1 going forward – a critical point for which we await further clarification.

We do expect this process to exponentially increase processing times for employment-based Adjustment of Status cases, and there was no immediate indication that USCIS would be hiring the additional officers at local district offices who would be tasked with conducting these interviews. USCIS is funded by user fees, and this move impacts cases that were already subject to a $1,225 filing fee for adults – there would be no additional funds coming in as a result of this policy change which could support additional hiring.

We also expect – at least in the short term – that employment-based cases may prove more problematic. District office interviewing officers have had little reason to learn very much about the employment-based categories in the past, and we anticipate a learning curve.

Given this potential for longer processing times and adjudications issues, we now advise that individuals if at all possible maintain valid underlying nonimmigrant work visa status (H-1B, O-1, L-1 etc.) In the past, we had generally believed it sufficient to have an Adjustment of Status application on file with approved employment and travel authorization without continuing to extend an underlying nonimmigrant visa.

As with many recent adverse policy changes, USCIS cited one of the Administration’s Executive Orders as a justification for the change – here the "Protecting the Nation from Foreign Terrorist Entry into the United States" order, #13780. Here, Section 4 of the Order directs USCIS’ parent agency, Department of Homeland Security (“DHS”) to “develop a uniform screening standard and procedure” – arguably justifying the procedural change in compliance with the order. The order itself, of course, remains questionable legally (as many courts have found), and logically in light of the relatively minuscule number of fraud matters arising from employment-based cases.