ALLEN E KAYE
October 28, 2015, the Citizenship and Immigration Serv- ices Ombudsman’s Office hosted a public teleconference regarding US Department of State (DOS) Consular Re- turns to the US Citizenship and Immigration Services (USCIS). Representatives from the USCIS Service Center Operations and DOS’ National Visa Center (NVC) and Kentucky Consular Center (KCC) responded to questions posed by the Ombudsman’s Office and the public. The dis- cussion focused on why a consulate may return a petition, the process for returns within DOS and USCIS, and pro- cessing times.
DOS Consular Return Process
During the call, DOS indicated that less than 0.5% of nonimmigrant visa (NIV) petitions and less than 1% of im- migrant visa (IV) petitions are returned to USCIS for fur- ther action. A consular officer will return a petition when facts previously unknown and material to the petition are discovered. Returns are not based on inadmissibility grounds. The return process starts with the officer drafting a memo detailing the reason(s) for the return. For nonim- migrant petitions, the memo is emailed to KCC. Docu- mentary evidence in support of the return is mailed separately to KCC via the most efficient service (diplo- matic pouch, express mail, etc). Next, KCC reviews the re- turn for completeness, records it in its internal database and then mails a hard copy to USCIS, usually within 5 days. If KCC has to go back to the consulate for more in- formation, then the process may take longer. Returns are tracked in PIMS. For employment based NIV petitions, the designated representative is not informed. For immigrant petitions, the memo is mailed (via ex- press mail, diplomatic pouch, etc.) to the NVC and it per- forms a similar review to the KCC before forwarding the return to the Service Center. The processing time is usu- ally within 15 days, unless additional information from the consulate is needed. The NVC also handles reaffirmed petitions, which are processed and sent back to the consulate within 10 days.
USCIS Consular Return Process
USCIS then explained the next steps in the consular re- turn process. Once a petition is returned to USCIS from KCC or NVC, USCIS updates its system notice to indicate that USCIS has the case, and a receipt notice is generated and sent to the petitioner. The return is also reflected in USCIS’ online My Case Status. Returned IV petitions are forwarded to the field office that originally approved the petition. Because of the amount of time that can pass since the petition was originally sent to the overseas consulate, the speakers stressed the importance of petitioners informing USCIS and the National Benefits Center of any address changes. The five reasons for a return are: statutory ineligibility, fraud, withdrawal of petition, missing or incorrect infor- mation, and death of petitioner/qualifying relative. If the petition is missing information or there are inaccuracies, then USCIS will issue a Request for Evidence (RFE). If fraud is detected, then USCIS will issue a Notice of Intent to Revoke (NOIR) and give the petitioner 30 days to re- spond. If the deficiency was not well founded or has been overcome, USCIS will reaffirm the petition. There are no processing times for consular returns and they are not strictly pegged to the processing time for the particular benefit. However, reference points are the petition and consular return dates. USCIS tries to handle consular returns it receives on a first in, first out basis. The speakers mentioned they are aware of concerns related to delay in responses and noted that they strive to keep things moving and that the service centers have to balance competing priorities. DOS also mentioned that it is working toward being more efficient by digitizing IV packets. Six posts are currently piloting
DOS Provides FY2016 Annual Numerical Limits
this. For now, speed of IV returns depends on the location of the post and available mail services. In response to the Ombudsman’s question on how re- turns are prioritized, USCIS stated it tries to respond within 120 days after a response to a NOIR is received. Ex- pedite is possible and is reviewed on a case-by-case basis.
The US Department of State has provided charts with the FY2016 Annual Numerical Limits for both family and employment-based visa preference categories. These are as follows:
Annual Numerical Limits (FY-2016) for families
Preference Foreign State Worldwide Fl 1,638 23,400 FX 65,950 F2A 6,151 21,984 F2B 1,838 26,266 F3 1,638 23,400 F4 4,555 65,000 Total 15,820 226,000 Unused numbers can "fall-down" from Fl to F2A to F2B to F3 to F4. Unused F4 numbers can "fall-up" to FI. This potential is taken into consideration when setting the monthly/an- nual targets for number use. Those targets are established based on the historical and current patterns of number use, and are adjusted as necessary. Note: (example) The total amount of FXlF2A numbers available would be 6,151. China issuances total 2,000 numbers under the FX classification, and 4,151 as F2As, reaching the overall limit. But the fact that 2,000 numbers had been issued as FX would not mean that they could be added to the F2B (1,838) limit. But had the combined FXlF2A total only been 4,151, then the remaining 2,000 numbers (under F2A limit) could be added to the F2B limit.
Employment (estimated limit)
Preference China* All Others Worldwide El 2,809 2,809 40,126 E2 2,809 2,809 40,126 E3/EW 2,509 2,809 40,126** E4/SR 697 697 9,961 E5 0 697 9,961 Total 8,821* 9,821 140,300 *The provisions of the Chinese Student Protection Act require that the China annual limit be reduced by 1,000. A total of 300 numbers are deducted from the E3 cate- gory, and 700 from the E5 category. **The EW category is currently entitled to up to 5,000 of this total. Unused numbers can "fall-down" from El to E2 to E3. Unused numbers can "fall-up" from E4 and E5 to EI. That fact is taken into consideration when setting the monthly/annual targets for number use, and based on his- torical/recent patterns of number use.
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