Update on Biometrics Abroad & USCIS Filing Tips
CAST participated in two March 2022 engagements with USCIS where representatives from the USCIS Office of Policy & Strategy (OPS), Service Center Operations Directorate (SCOPS), the Vermont Service Center (VSC), and the Public Engagement Division discussed issues relating to T visas and other humanitarian remedies. Key take-aways for T visa practitioners are as follows:
Processing times, staffing, & administrative issues
- About 150 officers are currently assigned to humanitarian cases between VSC and NSC. Resource allocations are continually evaluated and staffing levels change. The challenges faced by VSC and NSC throughout the pandemic have been similar to those experienced across USCIS in terms of maintaining operations, in particular regarding training and file management.
- USCIS acknowledged that there have been intermittent backlogs with receipt notice issuance, but indicated that most receipt notices are issued within 30 days of receipt of the filing. If more time than that has passed and receipts haven’t been received, then representatives should submit an inquiry with the I-918/I-914 hotline ([email protected]) to check on the status.
- Long I-914 processing times are attributable to multiple factors, including applicants missing biometrics appointments, applications pending at other service centers or offices, wait-times for completion of background checks, and pandemic-related difficulties. USCIS states that there are no backlogs of T visa applications that are ready to be adjudicated; VSC is current in terms of the work it is able to complete.
Communication with VSC
- The VSC phone line was permanently decommissioned during the pandemic.
- The general response time for the email hotline is 14-30 days. USCIS requests that representatives allow 30 business days for a response from a hotline and then suggests following up after 30 business days if there has been no response. When sending a follow-up inquiry, indicate that it is a second/follow-up inquiry in the subject line of the email. USCIS believes that their response times are consistently within the target goal of 30 business days.
- CAST encourages representatives to allow USCIS 30 business days to respond to non-urgent inquiries so that actual emergent issues have a better chance of being addressed in a timely fashion and to minimize hotline emails, when possible, so USCIS can use its resources most efficiently.
- Expedite requests made via the hotline are generally reviewed quicker than the 14-day minimum response time. USCIS will consider an expedite request for urgent, humanitarian reasons and based on guidance in the Policy Manual at Vol. 1, Part A, Ch. 5. The customer service team will respond and advise the representative of the decision on the expedite request. If the request is granted, the file is located and put into the workflow.
- USCIS recommends that representatives send new G-28s and AR-11s to the email hotline for the most efficient processing.
Pro se (unrepresented) applicants must communicate with VSC by mail due to 8 USC § 1367 confidentiality protections. Their written correspondence should identify the question or issue and must be signed by the applicant. USCIS will respond in writing to the applicant’s safe address. If the correspondence is not signed, USCIS cannot respond because there is no way to verify the applicant’s identity.
- For an applicant in the U.S., the best way to reschedule a biometrics appointment is to reach out to the email hotline. If the individual is pro se, then they need to mail the reschedule request to VSC.
- USCIS is aware of pandemic-related challenges related to scheduling biometrics abroad and has discussed with the Department of State. Both agencies are currently evaluating options. If the applicant cannot have their prints taken due to geographic location or pandemic-related closures, the applicant’s representative may contact the hotline and alternative options may be considered on a case-by-case basis.
- CAST does not recommend attempting to provide alternative evidence of no record (such as a local background check) without first communicating with the hotline, as there is no guarantee it will be accepted and could be burdensome for the derivatives abroad if they will need to be printed by a USCIS field office or consular post anyway.
- USCIS recommends responding to RFEs for biometrics abroad with information as to whether the derivative was able to have their biometrics taken.
CAST advises that practitioners always respond to such biometrics requests to avoid I-914A denial for abandonment. If the derivative has been unable to have their prints taken, include a brief explanation as to why and/or evidence of unsuccessful efforts to comply with the biometrics request such as scheduling emails with the consulate or public information regarding closure to the public.
- USCIS is currently operating under the 2011 fee waiver guidance. See Chapters 10.9 and 10.10 of the Adjudicator’s Field Manual.
- USCIS will be engaging in a rulemaking initiative and may issue new rules relating to fee waivers and fee exemptions. The agency is also reviewing standard operating procedures and internal guidance for VAWA, T, and U applicants, in particular.
- USCIS recognizes that T applicants may have difficulty obtaining fee waiver evidence. If an applicant cannot provide evidence of income, then they should describe their specific situation as it relates to their fee waiver eligibility. The applicant may also submit evidence from religious institutions, non-profit organizations, etc. verifying that they are receiving assistance or support from the institution.
- If documentation is included with the fee waiver request, it should be recent, ideally from within the last six months.
- Applicants may request supervisory review if a fee waiver request has been rejected multiple times; to do so, the whole packet would need to be resubmitted, indicating on it the request for supervisory review.
Bona fide determinations
- USCIS does not currently conduct bona fide determinations (BFDs) as per 8 CFR § 214.11(e), but is considering related comments received during the interim final rule comment period as it finalizes the rulemaking process.
- USCIS indicated that there is no process by which T or U-based adjustment applicants can request abeyance of an already-filed I-485. USCIS interprets the filing of an I-485 application as a request by the applicant for adjudication of the application.
CAST would like to note that while there is no formal abeyance process, some I-485 applications have been held by USCIS to allow for derivatives to consular process. Nonetheless, advocates should proceed with caution regarding T-1’s who are ready to adjust but for derivatives abroad, because this statement by USCIS, in addition to the Policy Manual language at Vol. 3, Part B, Ch. 10.E, is an indication that USCIS may not honor an abeyance request. T-1 clients should be advised of the risk that approval of an I-485 will prevent any derivatives abroad from being admitted as T nonimmigrants, so filing an I-539 based on exceptional circumstances to extend status until derivatives have entered the U.S. may be a safer option.
- USCIS is working with CBP to address the issue of I-94s not being issued (either paper or electronic) to some U and T derivatives upon arrival in the U.S.
- Per intake procedures, if an I-290B is submitted with more than one receipt number listed in Part 2, Question 3 and only one fee is included, then the I-290B will be rejected.
- Motions to reopen and motions to reconsider are generally assigned to the same officer for review, as they are the most familiar with the evidence and the basis for the decision.
- In the 290B context, USCIS will reopen associated applications or petitions if the principal’s application is approved. If a derivative’s denial is based solely on the denial of the principal’s I-914 application, no separate motion or appeal is needed for a derivative’s application. If the derivative’s I-914A was denied on independent grounds, then a separate I-290B would be required. The principal applicant would need to file the I-290B for the I-914A, not the derivative.
- USCIS is unable to provide information regarding processing times for motions to reopen and motions to reconsider before VSC but confirms that they are treated as a priority. If an MTR has been pending for a long time, for example for 6 to 12 months, then it would be appropriate to contact the hotline to request an update.
- There is no specified timeline for when a case is remanded by the Administrative Appeals Office (AAO) to VSC. Remands from the AAO are also treated as a priority. To follow up on a remanded case that is still pending at VSC, contact VSC via the hotline.
Filing tips from USCIS
- Though not required, USCIS recommends including an index of evidence, including for fee waiver requests.
- When responding to an RFE, always include the RFE with your response, which ensures the response is properly routed to the file.
- When filing an I-914 Supplement A for a derivative family member, include evidence of the familial relationship with both the I-914 and I-914A, which helps the adjudicator if the files get separated.
- Remember that the cover letter is not considered client testimony. Any claims by the applicant should be clearly and thoroughly articulated in the client’s personal statement.
- If inadmissibility grounds apply to the applicant, an I-192 should be filed with the I-914.
 OP&S and SCOPS attended the annual Freedom Network Conference on March 16, 2022 and answered pre-submitted questions primarily related to T nonimmigrant status. On March 31, 2022, AILA’s National VAWA, U, & T Committee held a stakeholder engagement with representatives from OP&S, SCOPS, VSC, and the Public Engagement Division where representatives answered pre-submitted questions on VAWA self-petitions and U and T nonimmigrant status. AILA’s unofficial notes can be found here, and USCIS’s official answers to some questions and comments were shared to USCIS's Electronic Reading Room.
On January 27, 2022, USCIS’s Public Engagement division held a webinar entitled Immigration Options and Resources for Victims of Trafficking with representatives from the USCIS Office of Policy & Strategy (OPS), the Service Center Operations Directorate (SCOPS), and the Ombudsman. A copy of the webinar presentation is available in USCIS’s Electronic Reading Room, along with answers to pre-submitted questions.
Main take-aways for T visa practitioners are as follows:
Policy Manual T visa sections (Volume 3, Part B)
- Released in October 2021, emphasizes USCIS’s trauma-informed approach to trafficking.
- Key areas clarified by the manual: age-based law enforcement cooperation exemption, physical presence requirement, trafficker intent, and attempted
T visa data & processing times
- Long processing times are generally due to Requests for Evidence (RFEs) pending the applicant’s response, cases held by outside agencies, and pending background checks. The majority of the backlog is due to ASC (biometrics) appointments; there is not a large backlog of cases that are ready to be worked up by an adjudicator.
- USCIS added resources to the T visa program during fiscal year 2020 and issued a record number of decisions in FY2020.
- USCIS recently released Characteristics of T Nonimmigrant Status (T Visa) Applicants, a more detailed set of T-related data that includes country of origin, state of residence, age and gender, and certification-related data.
Bona fide determinations
- There is no current plan to implement a bona fide determination (BFD) process for T visa applicants because under the current regulations, the review required is essentially a full adjudication.
- USCIS will release data on U visa BFDs including processing times, when it has sufficient data.
- Both BFDs and full U visa adjudications will be conducted by adjudicators; the BFD process is not superseding U visa adjudications.
Law enforcement certifications
- I-914 Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons (“certifications”) must contain an original ink signature; copies cannot be submitted to USCIS.
- Certifications are not required evidence for the T visa.
- USCIS maintains a record of designated signing officials. If a law enforcement agency wants to update that information with USCIS or has general questions about certifications, they can email the law enforcement-only email hotline at [email protected].
- Reminder regarding the recently updated T Visa Law Enforcement Resource Guide (updated October 2021).
T visa filing tips, best practices, and comments regarding VSC adjudications from SCOPS
- Recommended order of filings: 1) G-28; 2) I-914; 3) I-914B (if applicable); 4) I-192 (if applicable); 5) supporting documentation
- If responding to an RFE, place the RFE on top, followed by any cover letter and supporting evidence.
- If the representative is aware of applicable grounds of inadmissibility, an I-192 should be filed with the initial I-914/I-914A application.
- Include family relationship evidence with both the principal and derivative applications to cut down on RFEs.
- If a U.S.-based derivative wants employment authorization, file the I-765 with the I-914A to speed up adjudication time.
Pro se (unrepresented) applicants must communicate with VSC by mail due to 8 USC § 1367 confidentiality protections; they cannot utilize the VSC hotline email ([email protected]).
Abeyance of I-485s and derivatives abroad
- In situations where the T-1 has a pending I-485 but still wants to bring over overseas derivatives, VSC’s preferred process is that the applicant withdraw the I-485 and timely file an I-539 with exceptional circumstances evidence (e.g., evidence regarding the need to complete consular processing and travel). As a general rule, once an I-485 application is filed by the T-1, USCIS operates under the assumption that the applicant wants the application adjudicated. I-485s generally will not be held in abeyance.
- USCIS will be producing a FAQ with T visa-related information that will be posted on its website.
CAST conducted a wrap-up of 2021 T nonimmigrant (I-914) AAO decisions that have been uploaded to AAO’s non-precedent decision repository as of December 29, 2021.
(Note: New cases are uploaded daily/weekly on the USCIS website, so this data may not be complete for AAO appellate adjudications in 2021 as of date of this posting.)
You can view the 2021 decisions, along with prior AAO decisions, via CAST’s Airtable.