Details Emerge About Employment-Based Interview Program

Details regarding USCIS’ unexpected move to conduct in-person interviews of pending adjustment applicants are becoming clearer and interviews have begun occurring at field offices nationwide.  Though not part of the current program, USCIS has indicated that other case types, including I-751 applications and applications for nonimmigrant visa changes of status may be included at a future date.

Why are they doing this?

On March 6th, 2017, President Donald Trump signed Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States."  This order requires the Secretary of Homeland Security to implement increased screening and vetting procedures, including interviews, for those seeking admission to the US. Personal interviews are expected to more rigorously evaluate questions of inadmissibility and to root out fraudulent applications, similar to interviews conducted at a consular level.  Agency representatives have repeatedly stated that it is a reasonable expectation that applicants pass a screening procedure prior to receiving the lifelong benefit that a green card represents.  USCIS is also expected to develop programs such as a database of identity documents to ensure that duplicate documents are not used by multiple applicants and to amend application forms to include questions aimed at identifying fraudulent answers.

Who will be interviewed?

Expect to be interviewed If you have recently filed an employment-based green card application.  All individuals who filed to adjust status (form I-485) on or after March 6, 2017, who have an underlying employment-based application (form I-140), will be interviewed.  Employment-based applications include PERM labor certifications as well as international executives, outstanding researchers and professors, clinical physicians working in the national interest, and those with extraordinary ability.

In addition to the principal applicant, all family members seeking adjustment will also be interviewed.  The USCIS intends to call families as a group so that the interviews can be conducted together.  Children under 14 are eligible for a waiver of the interview, but little information has been provided on how to request the waiver and what standards will be applied.

What types of questions are expected?

Officers will review all answers provided on the I-485 application and may ask related follow-up questions.  Immigration history, including prior visa statuses, entry dates and intentions, and whether employment was authorized will be discussed. Applicants should be prepared to answer questions about their eligibility for the green card as was stated in the underlying I-140.  Prior employment experience will be discussed if it was used as the basis for qualification.  Questions about the position offered, including job sites and duties, pay details, and educational background should be anticipated.  Officers will use these responses to assess the credibility of the evidence submitted to support the I-140.  Applicants should be thoroughly familiar with the details of their application as it was presented on the I-140 and any PERM related materials.

USCIS will confirm that the employer still intends to employ the applicant and that the applicant still intends to take up employment.  However, the Service has specifically stated that officers are instructed not to re-adjudicate the merits of the I-140 or the petitioning company's financial abilities. 

Family members of the principal should expect questions regarding their relationship with the principal and the bona fides of that relationship. Family members may consider bringing interview documents confirming the relationship (birth certificates, marriage certificates, etc.) and documents showing the bona fides of the relationship, such as co-mingling of assets, joint tax returns, and the like, particularly if the relationship was recently established.

What about Supplement J and Job Changes?

Recent changes require that, unless you are filing Form I-485 together with Form I-140, you must file Supplement J at the time you file your Form I-485.  This form is meant to confirm that the job offered in the underlying Form I-140 is still legitimate and available.  If your case has been pending for some time, USCIS may request that you file Supplement J again prior to final processing of your Form I-485.  Such a request will be sent as an RFE and is expected to be handled at the service center, not local field offices.

Want to change jobs while your adjustment is pending? You must also must file Supplement J to request job portability which requires:

• An I-485 which has been pending with USCIS for 180 days or more,
• Based on an approved or pending Form I-140 that names you as the principal beneficiary, and,
• A new, permanent job offer from a U.S. employer that is in the same or similar occupational classification as the job offered to you in the underlying Form I-140

USCIS anticipates that requests for evidence and determinations related to Supplement J will be made at the National Benefits Center level.  They advise that such determinations will be reached prior to the file ultimately being shipped to a field office for interview.  However, the details of the job change, including new duties, may be the topic of inquiry during an interview.

Will this delay my green card?

Yes.  Adding a second layer of review, including the wait for a local appointment, will assuredly add to overall processing times.  Yet, USCIS suggests that the bigger impact will be felt by those applying for naturalization and family-based matters, such as marriage interviews. 

The Agency claims that employment-based adjustments "should not slow down" and are keenly aware of priority date considerations and aims to exhaust employment-based numbers each year.  It's simply too early to tell.

The long-term processing impact will depend on the ability of USCIS to add additional staff, streamline procedures, and implement processing improvements.

What role can my attorney play in this process?

Perhaps the greatest role that your attorney can play is in preparing you for the interview.  A thorough understanding of the evidence presented in your underlying case is essential for success.  Applicants are encouraged to spend time refreshing their memory regarding employment dates, duties, and educational achievements.  

Your attorney may be present with you during the interview and can clarify questions or concerns that arise.  However, your attorney is not permitted to answer questions directly on your behalf.  

This change in adjudications was not anticipated.  It is likely that the cost of representation and review was not included in your initial fee agreement.  Consult with your attorney to determine what type of preparation is available and whether an attorney appearance is warranted in your unique case.