USCIS procedures for issuing residency when FBI background has not yet cleared

Question: I read in your column recently about the immigration issuing Green Cards at the residency interview even if the FBI check was not finished. My case was filed in Oct of 2007 and I went to my interview last week. The officer said I was approved and everything was fine, but that they couldn’t issue me my residency yet because of the FBI check. Can you please explain that to me?

Answer: Yes, that’s a great question. The new policy mandates that the FBI must at least be given 180 days to process background checks before the USCIS is required to issue the adjustment of status to permanent residency. That means that once an I-485 application is filed and the biometrics have been taken, the 180 days should begin from the day the biometrics are completed. Then, once an applicant attends his or her adjustment interview for residency, as long as 180 days have passed since the biometrics were completed, (and the case is otherwise approvable), the USCIS Officer can issue the I-551 stamp (evidence of lawful permanent residence).

The actual Green Card is usually received in the mail within a few weeks. In most cases currently, the Miami District office is scheduling adjustment interviews within about 5-6 months from the date of filing the I-485 application. So, since the actual biometrics are not taken for about 30 days or so, most applicants are not receiving residency stamps at their adjustment interviews, unless the FBI background check has actually been received. Therefore, the procedure is that once the 180 days have passed, the applicant will simply receive a “Welcome Notice” and then the actual Green Card in the mail.

When an applicant receives more than one biometrics appointment

Question: I filed my Green Card application and went to my fingerprints appointment two months ago. Now, I received another appointment to go have the fingerprints/biometrics done. I don’t know if this is a mistake and if I should just ignore it or whether I have to go. It’s really hard for me to take off work to go all the way there if I don’t need to. Thanks.

Answer: You must go to the appointment. In many cases where a second biometrics appointment is scheduled, it is because either the first was not done properly or was incomplete. If you don’t go, it could delay the issuance of your work and travel permits and even result in the denial of your case. So, even if it is a mistake, you must go. In cases where you need to reschedule, check off the day you desire (either Wed or Sat) and then send in the bottom portion of the notice to the address shown on the form. If you have questions, you can call the USCIS 1-800-375-5283.

Tips on extending L-1 visas during the first year of operations

Question: I have been on an L-1 visa for 3 months now and I understand that because the U.S. company is new, I have to get a visa extension soon. I'm getting a little worried about what I am supposed to do and whether or not the INS will approve an extension, do you have any insights?

Answer: This is a very common problem for L-1 visa holders who obtain the L-1 visa based-upon starting a new U.S. company. Frankly, the best advice is always that given BEFORE obtaining the visa, when your immigration attorney outlines in detail the steps that must be taken not only to obtain the L-1 (which can be fairly easy), but more importantly, in how to KEEP IT! The rule of thumb advice is this - your request for an extension should be filed no later than 90 days before your L-1 expires, which gives you approximately 9 months to start the business and get it up and running - not much time.

After many years of experience in dealing with INS's evolving unwritten criteria for L-1 visa extensions, the most conservative tips I can give, which will greatly increase your likelihood for obtaining an L-1 extension is this: 1) Have at least 2- 3 other employees on the official payroll for 3 to 6 months before filing the extension. Employees can be added gradually. 2) Show as high GROSS revenues (receipts) for as many months of operations as possible. This is NOT the time to worry about IRS obligations, since total gross revenues are seen by the INS as an indicator of the stability of a company; 3) Every possible expense by the L-1 visa holder and company should be in the company name, document everything. Nothing should ever be in the L-1 holder’s name, for instance telephone, electricity, etc. The aforementioned is just very basic and every situation is different.

With the right knowledge and creativity, many L-1 visas can be extended. Therefore, you need to fully explore and understand the complete process, requirements and risks in order to make the best possible choices based upon your particular circumstances.