The U.S. Citizenship and Immigration Services (USCIS) recently announced a new policy requiring all adjustment of status applicants seeking employment-based green cards to appear for an interview at a USCIS field office. The adjustment of status application is the final step in the green card process for foreign non-immigrant employees looking to move to permanent resident status without leaving the United States.  Prior to this change, which went into effect on October 2, 2017, USCIS required interviews in only 5 to 10 percent of all employment-based adjustment cases.

The new policy applies to all Form I-485 adjustment of status applications filed on or after March 6, 2017, where the underlying immigrant petition is an employment-based Form I-140 (EB-1, EB-2, and EB-3). The USCIS has indicated that adjustment cases filed prior to March 6, 2017, will be adjudicated in accordance with previous procedures.

The USCIS has stated that the new policy is in compliance with President Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and “is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.” Critics, however, have charged that the new policy is not necessary because there is no widespread fraud in employment-based adjustment adjudications and will only serve to delay an already lengthy and complex green card process.

What Does It Mean for Employers?

This change affects all employers who sponsor foreign workers for permanent residency. It is essential that the employer make sure that any worker going through the interview is thoroughly prepared. An employee’s misstep during this final vetting process could totally derail the entire green card case at the very last stage.

In addition, because thousands of extra interviews will be conducted annually, there will almost certainly be additional delays in the processing of these employment-based adjustment applications. In fact, the USCIS has estimated that these applications will ultimately account for approximately 17 percent of the USCIS’s entire field operations workload. And, as resources get shifted around, the change will impact the processing times for other types of USCIS filings, such as family-based adjustment applications and naturalization cases.

What Should the Applicant Expect at the Interview?

The applicant could be asked about almost anything, but the USCIS has specifically stated that the following matters will be probed:

• Any information provided on the Form I-485.
• Issues relating to the applicant’s eligibility or admissibility, such as any arrests or misrepresentations made to an immigration officer.
• The applicant’s entire immigration history, particularly whether the applicant has properly maintained his non-immigrant status.
• Family members applying as derivative to the employment-based principal applicant should anticipate questions about their relationship to the principal and the bona fides of that relationship.

If the field officer conducting the interview is not satisfied with an applicant’s answers and believes that an applicant is not eligible for adjustment, the Form I-485 will be denied.

Will the Field Officer Re-Adjudicate the Form I-140?

Technically, no. The USCIS has said that the interviewing field officers have been instructed not to re-adjudicate the underlying Form I-140. However, the agency has also made clear that the officers will be charged with assessing the validity of the documents used to approve the Form I-140 petition to ensure that the supporting evidence was accurate and credible. If the officer determines that that evidence is not credible, he can recommend that the Form I-140 be revoked by the service center that originally issued the approval.

For this reason, it is imperative that the applicant thoroughly understand the basis for the Form I-140 petition and be prepared to articulate at the interview how his employment qualified for approval. The applicant should review the Form I-140 petition and any underlying PERM application in advance and address any tricky issues with the employer or counsel. The applicant will almost certainly be questioned about the job for which he was sponsored as well as about his own educational background and work experience. Mistaken or sloppy responses could lead to a disastrous result.

Should the Applicant Have an Attorney?

Applicants are entitled to legal representation at their USCIS interviews, and it is certainly best if they are accompanied by counsel. Although attorneys are typically discouraged from actively participating in the actual interview, they can help limit misunderstandings between the applicant and the interviewing officer and ensure that the process does not go off the rails.

Just as important, an attorney can prepare the applicant on what to expect beforehand and work with the employer and the applicant to make sure that the applicant takes the appropriate documentation to the interview. The interview notices that are currently being sent out are generic and somewhat confusing as they include certain documents that do not even apply in employment-based cases. Having a knowledgeable immigration attorney involved in the interview process can help ensure that the employee’s green card does not get denied at the final hour.