New processing procures at the NSC and TSC regarding concurrently filed Form I-140 and Form I-485 are creating difficulties for borderline cases. Previous USCIS Memoranda required USCIS adjudicating officers who denied an Petitioner’s Form I-140 to hold the Form I-485 for up to 30 days after the Form I-140 denial in case the Petitioner chose to appeal. Then if the Administrative Appeals Office (AAO) sustained the appeal, the USCIS adjudicating officer would approve the Form I-485. Now, the USCIS will immediately deny Form I-485 when Form I-140 is denied. This means that every Petitioner should make sure that their Form I-140 petition is presented in the best possible light, especially in cases of concurrent filings. Beneficiary’s are also advised to maintain nonimmigrant status, where possible, prior to Form I-140 approval and in some cases, before Form I-485 approval.
Texas Service Center
Texas Service Center Operations
In a recent question and answer session, the Texas Service Center (TSC) has made some revelations regarding how they process certain immigrant and nonimmigrant petitions.
- Motion to Reopen; Motion to Reconsider; Appeals
When filing a motion to reopen or reconsider, the officer who originally made the decision to deny the underlying case will decide the motion. If the offier decides to deny the motion, the decision will be reviewed by a supervisor. Where an appeal is made, the TSC will not reopen or reconsider where the Service believes it made a correct decision but will forward the appeal to the AAO.
- Petition Denials without RFE or NOID
When an officer decides to deny a petition without sending a request for evidence or notice of intent to deny, that offier’s decision must reviewed by two supervisors before the denial notice will be issued.
- Notice to Appear Issuance upon I-485 Denial
Generally, the TSC will wait 30 days after issuing an I-485 denial before dispatching a notice to appear (NTA). This 30 day period provides the Applicant with an opportunity to appeal the denial before being sent to removal proceedings.