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Active monitoring of pending AOS applications - why it is essential

MonitoringStarting with the 2007 “filing rush” and subsequent retrogression of visa cutoff dates, a large number of individuals find themselves sitting and waiting for action on their adjustment of status applications. Depending upon the USCIS to “do the right thing” is worse that futile, it can be outright dangerous. For this reason, it is imperative that applicants closely monitor the pending AOS cases.

Contrary to popular belief, the USCIS does not have any mechanism in place to assure that pending AOS cases are processed on a first in, first out basis. Despite many attempts to reform the system, cases are still being selected for processing on a more or less random basis. The fact that an applicant’s priority date is “current” is no assurance that the USCIS will even call up the case, much less process it to completion.

In September, 2009 the USCIS published what they purport to be an inventory of their existing adjustment of status cases. This inventory shows a number of significant anomalies. For example, it shows thousands of pending cases with priority dates that have never been “current” and could not have been filed legally. It also shows thousands of cases with “current” priority dates that have been pending for many years – with “current” priority dates. This document is the best evidence of the irrationality of the USCIS adjustment of status processing system.

Pending AOS applications must be closely monitored to make sure that all appropriate inquiries are made on a timely basis. Unless they are pushed, USCIS personnel cannot be counted upon to recognize that a particular case is ripe for adjudication and pending past normal processing times. Applicants may not simply sit back and hope that the USCIS will do what the law requires them to do. That agency has a long and sorry history of ignoring the law and ignoring its responsibilities. For the most part, they do not act until someone forces them to act.

Of equal importance is the unwillingness of the USCIS to curb the illegal actions of rogue adjudicators who continue to deny pending AOS applications that have been on file for more than 180 days when the former employer attempts to revoke the underlying I-140. Such denials are flatly illegal. The USCIS Ombudsman has commented on this and offered assistance to anyone suffering this type of illegal denial. Still, despite USCIS Headquarters memoranda instructing adjudicators to the contrary, this practice continues. Unfortunately, for many applicants, this type of denial is the final straw. Rather than even question it, they simply pack up and move back home. Applicants need to make certain that they do not fall victim to these types of illegal practices.

For these and other, equally compelling reasons, AOS applicants need to carefully monitor the ongoing status of their applications. They need to anticipate visa cutoff date movement and prepare a proper record of inquiries so that they can act when the time comes.

A problem that many applicants encounter is that their AOS applications were prepared and filed by their company (or former company’s) attorney. Adjustment of status is personal to the individual applicant. Once an I-485 has been pending for more than 180 days, the applicant’s employer has nothing further to do with it and may not interfere in the case. For this reason, many company attorneys are unwilling to pursue aggressive measures on behalf of individual AOS applicants. Either the company does not pay them to do this, or they feel that it is not in the company’s best interests to enter into a confrontation with the USCIS over a single application. Either way, the applicant receives less than ideal representation. Fortunately, individual AOS applicants are not required to continue representation by company lawyers unless they are satisfied with the work those lawyers provide.

Our office continues to offer AOS monitoring services for people who have filed AOS applications and are awaiting adjudication. We charge a flat fee of $800 for the primary applicant and all accompanying dependents. This fee does not include shipping charges or filing fees. It also excludes EAD and advance parole extensions. It does include, however, all responses to USCIS inquiries (RFEs, NOIDs, etc.) as well as unlimited contact with our office. If an AOS application is denied as a result of an employer’s attempted revocation of the underlying I-140, we also include a motion to reconsider as part of this package. Most importantly, we do not charge for contact with our office. Our clients may call us or e-mail us as often as necessary, and for any reason.

If you are interesting in discussing having our office take over monitoring of your pending AOS application, please feel free to call us (800-317-3651) to discuss it. We do not charge for talking to people about possible representation.

Watch our ImmInfo Channel video AOS Monitoring and Why It's Important to You.