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SUPPORTING STATEMENT FOR
Application to Register
Permanent Residence or Adjust Status
OMB Control No.: 1615-0023
COLLECTION INSTRUMENT(S): Form
I-485. Supplement A, and Supplement J
A.
Justification
1. Explain the circumstances
that make the collection of information necessary. Identify any legal
or administrative requirements that necessitate the collection.
Attach a copy of the appropriate section of each statute and
regulation mandating or authorizing the collection of information.
Section 245 of the Immigration
and Nationality Act (INA) is the primary law that provides for the
adjustment of status of foreign nationals in the United States to
that of a lawful permanent resident. INA Section 245A provides for
the adjustment of status of “legalization” applicants.
INA Section 209 provides for the adjustment of status of asylees and
refugees. Special laws (cited below) provide for the adjustment of
status of certain Afghan and Iraqi nationals. INA Section 249
provides for the “registry” of lawful permanent residence
for persons residing continuously in the United States since before
January 1, 1972.
Section
7611 of the National Defense Authorization Act for Fiscal Year 2020
(NDAA 2020), Liberian Refugee Immigration Fairness (LRIF), allows
Liberian nationals and certain family members living in the United
States who meet the statute’s eligibility requirements to apply
to adjust status to become lawful permanent residents.
INA Section 291 provides that
“whenever any person makes an application for a visa . . . or
makes an application for admission, or otherwise attempts to enter
the United States, the burden of proof shall be upon such person to
establish that he is eligible to receive such visa or such document,
or is not inadmissible under any provision of this Act, and, if an
alien, that he is entitled to the . . . immigrant . . . status
claimed.
INA Section 204(b) states:
Investigation; consultation;
approval; authorized to grant preference status. After an
investigation of the facts in each case, and after consultation with
the Secretary of Labor with respect to employment-based immigrant
[Form I-140] petitions to accord a status under section 203(b)(2) or
203(b), the Attorney General shall, if he determines that the facts
stated in the petition are true and that the alien in behalf of whom
the petition is made is eligible for preference under subsection (a)
or (b) of 203(b), approve the petition.
INA Section 204(e) states:
Subsequent finding of
non-entitlement to preference classification. Nothing in this
section shall be construed to entitle an immigrant, on behalf of whom
a petition under this section is approved, to be admitted to the
United States as an immigrant under subsection (a), (b), or (c) of
section 203 . . . if upon his arrival at a port of entry in the
United States he is found not to be entitled to such classification.
The employment-based immigrant
visa process generally involves a multi-step process that may involve
various U.S. governmental departments, including USCIS, DOL, and the
U.S. Department of State (DOS).
Because of the passage of time
between the approval of the labor certification process, the approval
of the employment-based immigrant petition [Form I-140] process, and
adjustment of status, [Form I-485] process, this information
collection is necessary to ensure that the applicant is still
entitled to employment-based immigrant visa classification under INA
Section 203(b) and is not inadmissible to the United States at the
time the Form I-485 is filed and adjudicated. Regarding
inadmissibility grounds that this information collection relates to
see INA Section 212(a)(5)(A); INA 212(a)(4).
Additionally, Section 106(c) of
The American Competitiveness in the Twenty-First Century Act of 2000,
Pub. L. No. 106-313, 114 Stat. 1251 (“AC21”), amended INA
Section 204 by adding subsection (j), titled “Job Flexibility
for Long Delayed Applicants for Adjustment of Status to Permanent
Residence.” INA Section 204(j) states:
A petition under subsection
(a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose
application for adjustment of status pursuant to INA section 245 has
been filed and remained unadjudicated for 180 days or more shall
remain valid with respect to a new job if the individual changes jobs
or employers if the new job is in the same or a similar occupational
classification as the job for which the petition was filed.
Importantly, AC21 created a
parallel provision at INA Section 212(a)(5)(A)(iv) that extended the
validity of any underlying labor certification if the conditions of
INA Section 204(j) are satisfied.
Authority:
INA Section 245 and 8 CFR 245.1 et seq.; INA Section 245A and 8 CFR
245(a).1 et seq.; INA Section 209 and 8 CFR 209.1 et seq.; Section
1059 of Public Law 109-163, as amended by Public Law 110-36; Section
1244 of Public Law 110-181, as amended by section 602(b)(9) of Public
Law 111-8; Section 602(b) of Public Law 111-8; INA Section 249 and 8
CFR 249.1 et seq; INA Section 291; INA Section 204(b); INA Section
204(e); INA Section 212(a)(5)(A); INA Section 212(a)(4); INA Section
204(j); Section 902 of Public Law 105-277 (HRIFA).
Authority:
INA Section 245and 8 CFR 245.1 et seq.; INA Section 245A and 8 CFR
245(a).1 et seq.; INA Section 209 and 8 CFR 209.1 et seq.; Section
1059 of Public Law 109-163, as amended by Public Law 110-36; Section
1244 of Public Law 110-181, as amended by section 602(b)(9) of Public
Law 111-8; Section 602(b) of Public Law 111-8; INA Section 249 and 8
CFR 249.1 et seq; INA Section 291; INA Section 204(b); INA Section
204(e); INA Section 212(a)(5)(A); INA Section 212(a)(4); INA Section
204(j); Section 902 of Public Law 105-277 (HRIFA); Section 7611 of
Public Law 116-92 (LRIF).
2. Indicate how, by whom, and
for what purpose the information is to be used. Except for a new
collection, indicate the actual use the agency has made of the
information received from the current collection.
The data collected on these forms
are used by U.S. Citizenship and Immigration Services (USCIS) to
determine eligibility for the requested immigration benefit.
The forms serve the purpose of standardizing requests for benefits
and ensuring that applicants provide all essential information
required for USCIS to assess eligibility and adjudicate the
applications. Form I-485 is used by all applicants seeking to adjust
status to permanent resident under INA section 245(a). Supplement A
to Form I-485 is used by a very small subset of applicants seeking to
adjust status under INA section 245(i). The Form I-485 instructions
provide general guidance applicable to all applicants for adjustment
of status, along with additional instructions that provide guidance
specific to an applicant’s particular immigrant category under
which they are filing (such as family-based, employment-based, etc.).
Supplement A to Form I-485 is
used by a subset of applicants seeking to adjust status under INA
section 245(i).
Supplement J will be used by
applicants whose adjustment of status is based on an approved
employment-based immigrant visa petition that requires a job offer.
Like all adjustment applicants,
applicants applying to adjust status based on LRIF will use Form
I-485. USCIS needs the information collected on Form I-485 to
determine if an applicant is eligible to adjust status based on LRIF.
3. Describe whether, and to
what extent, the collection of information involves the use of
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses, and the basis for the decision
for adopting this means of collection. Also describe any
consideration of using information technology to reduce burden.
The use of the Form I-485, Form
I-485 Supplement A, Supplement J, and the Instructions for filing
provide the most efficient means of collecting and processing the
information needed to determine eligibility for individuals to
acquire permanent residence status through adjustment of status.
The forms can be completed electronically but currently cannot be
filed electronically.
Forms I-485 and I485A will be
available electronically at www.uscis.gov/
keyword search “Form I-485.”
USCIS is in the process of
investigating the requirements for electronic submission of Forms
I-485 and I-485A. Currently, respondents can access and complete the
forms online but they must submit the completed application by mail.
4. Describe efforts to
identify duplication. Show specifically why any similar information
already available cannot be used or modified for use for the purposes
described in Item 2 above.
USCIS has investigated its
internal processes, files and data as well as those of other Federal
agencies that may service the same population. In an effort to
minimize collecting duplicate information, USCIS reviews the
applications and make a request for specific information using the
I-797.
The information collected via the
I-485 and its associated instructions collect information necessary
to adjudicate the applicant’s request. Some pieces of the data
collected here may be done so via instruments that other agencies
utilize, but the bulk of the information necessary to adjudicate the
application for adjustment of status must be up-to-date at the time
of the request and decision. Because of the extensive eligibility
requirements for adjustment of status, attempting to gather
information from other agencies that might have a few select parts of
the required data and then verifying the authenticity and timeliness
of the detail would require time beyond what currently is required to
process the application. This would increase the cost for the
applicant beyond the current fee charged due to the additional
processing time that investigating, obtaining, and verifying the
other agency’s information would require.
5. If the collection of
information impacts small businesses or other small entities (Item 5
of OMB Form 83-I), describe any methods used to minimize burden.
The collection of information
does not have an impact on small businesses or other small entities.
6. Describe the consequence to
Federal program or policy activities if the collection is not
conducted or is conducted less frequently, as well as any technical
or legal obstacles to reducing burden.
If this information is not
collected, it would hinder USCIS’s ability to accept and
analyze information submitted by applicants for permanent residence
status.
7. Explain any special
circumstances that would cause an information collection to be
conducted in a manner:
• Requiring respondents
to report information to the agency more often than quarterly;
• Requiring respondents
to prepare a written response to a collection of information in fewer
than 30 days after receipt of it;
• Requiring respondents
to submit more than an original and two copies of any document;
• Requiring respondents
to retain records, other than health, medical, government contract,
grant-in-aid, or tax records for more than three years;
• In connection with a
statistical survey, that is not designed to produce valid and
reliable results that can be generalized to the universe of study;
• Requiring the use of a
statistical data classification that has not been reviewed and
approved by OMB;
• That includes a pledge
of confidentiality that is not supported by authority established in
statute or regulation, that is not supported by disclosure and data
security policies that are consistent with the pledge, or which
unnecessarily impedes sharing of data with other agencies for
compatible confidential use; or
• Requiring respondents
to submit proprietary trade secret, or other confidential information
unless the agency can demonstrate that it has instituted procedures
to protect the information's confidentiality to the extent permitted
by law.
This information collection is
conducted in a manner consistent with the guidelines in 5 CFR
1320.5(d)(2).
8. If applicable, provide a
copy and identify the data and page number of publication in the
Federal Register of the agency’s notice, required by 5 CFR
1320.8(d), soliciting comments on the information collection prior to
submission to OMB. Summarize public comments received in response to
that notice and describe actions taken by the agency in response to
these comments. Specifically address comments received on cost and
hour burden.
Describe efforts to consult
with persons outside the agency to obtain their views on the
availability of data, frequency of collection, the clarity of
instructions and recordkeeping, disclosure, or reporting format (if
any), and on the data elements to be recorded, disclosed, or
reported.
Consultation with
representatives of those from whom information is to be obtained or
those who must compile records should occur at least once every 3
years - even if the collection of information activity is the same as
in prior periods. There may be circumstances that may preclude
consultation in a specific situation. These circumstances should be
explained.
On June 25, 2020, USCIS published
a 60-day notice in the Federal Register at 85 FR 38151. USCIS
received several comments after publishing that notice. We have
summarized the comments and provided responses in the attached
Appendix A. On September 29, 2020, USCIS published a 30-day
notice in the Federal Register at 85 FR 61023. USCIS received
additional comments in response to that notice and we have summarized
those and provided responses in Appendix B, attached.
USCIS and DHS are working on a
number of initiatives that may have an effect on the Form I-485.
While the new administration analyzes and determines the direction
these initiatives will take, USCIS has decided to limit the revision
of this information collection, the USCIS Form I-485, to adding
questions provided by the U.S. Social Security Administration (SSA),
and the related instructions. The added questions will enable
respondents to request a new or replacement Social Security
Number/Card concurrently with their application for adjustment of
status to lawful permanent resident. Respondents will no longer
need to complete a separate information collection and submit it to
SSA. USCIS and SSA have analyzed the associated burden as
required by 5 CFR 1320.5 and determined that information sharing
between USCIS and SSA is least burdensome method for respondents to
obtain a social security number. All other changes that USCIS
proposed in the versions of Form I-485 and its instructions posted
with the 60-day Federal Register Notice (FRN) at 85 FR 38151 and
30-day FRN at 85 FR 61023 will not be incorporated at this time.
Because USCIS is only adding the
SSA questions in this revision, we are only responding to the public
comments that substantively address those changes in Appendix A and
Appendix B. USCIS has summarized all of the comments received
and provided responses to the comments related to the SSA questions.
USCIS has responded to the remaining comments on changes that are not
being adopted with “Not applicable” due to the decision
to remove those changes from this revision.
9. Explain any decision to
provide any payment or gift to respondents, other than remuneration
of contractors or grantees.
USCIS does not provide any
payment for benefit sought.
10. Describe any assurance of
confidentiality provided to respondents and the basis for the
assurance in statute, regulation or agency policy.
The Privacy Act of 1974 (Public
Law 93-589) mandates that personal information solicited from
individuals completing federal records and forms be kept
confidential. The respondent is informed prior to submission that
USCIS may provide this information to other agencies.
The PIA associated with this
information collection is:
The system of records notices
associated with this information collection are:
DHS/USCIS/ICE/CBP-001
A-File SORN
DHS/USCIS-007
Benefits Information System (BIS) SORN
DHS/USCIS-018
Immigration Biometric and Background Check
11. Provide additional
justification for any questions of a sensitive nature, such as sexual
behavior and attitudes, religious beliefs, and other matters that are
commonly considered private. This justification should include the
reasons why the agency considers the questions necessary, the
specific uses to be made of the information, the explanation to be
given to persons from whom the information is requested, and any
steps to be taken to obtain their consent.
USCIS asks questions of a
sensitive nature regarding past behavior and activities. These
questions are necessary to determine eligibility of the applicant for
adjustment to permanent residence status as required by law.
Sensitive questions are asked to determine: whether an individual
might be inadmissible under INA 212 (a)(3) (A)-(F) – Security
Grounds for Unlawful Activity, Control or Overthrow of the U.S.
Government, Terrorist Activities, Adverse Foreign Policy
Consequence, Communist or Totalitarian Affiliation; whether an
individual might be inadmissible under INA 212 (a)(2)(A)(i)(I) –
Conviction or Commission of a Crime Involving Moral Turpitude (CIMT)
or INA 212(a)(2)(A)(i)(II), (B), or (C) – Controlled Substance
Violations, Multiple Criminal Convictions, or Controlled Substance
Traffickers; or whether an individual might be inadmissible under INA
212 (a)(2)(D)(i) and (ii) – coming to the United Sates solely,
principally, or incidentally to engage in prostitution or an unlawful
commercialized vice.
12. Provide estimates of the
hour burden of the collection of information. The statement should:
• Indicate the number of
respondents, frequency of response, annual hour burden, and an
explanation of how the burden was estimated. Unless directed to do
so, agencies should not conduct special surveys to obtain information
on which to base hour burden estimates. Consultation with a sample
(fewer than 10) of potential respondents is desirable. If the hour
burden on respondents is expected to vary widely because of
differences in activity, size, or complexity, show the range of
estimated hour burden, and explain the reasons for the variance.
Generally, estimates should not include burden hours for customary
and usual business practices.
• If this request for
approval covers more than one form, provide separate hour burden
estimates for each form and aggregate the hour burdens in Item 13 of
OMB Form 83-I.
• Provide estimates of
annualized cost to respondents for the hour burdens for collections
of information, identifying and using appropriate wage rate
categories. The cost of contracting out or paying outside parties for
information collection activities should not be included here.
Instead, this cost should be included in Item 14.
Type
of Respondent
|
Form
Name / Form Number
|
No.
of Respondents
|
No.
of Responses per Respondent
|
Total
Number of Responses
|
Avg.
Burden per Response (in hours)
|
Total
Annual Burden (in hours)
|
Avg.
Hourly Wage Rate
|
Total
Annual Respondent Cost
|
Individuals
and households
|
Application
to Register Permanent Residence or Adjust Status, Form I-485
|
578,708
|
1
|
578,708
|
6.42
|
3,715,305
|
$37.55
|
$139,514,175
|
Individuals
and households
|
Supplement
A to Form I-485, Adjustment of Status Under Section 245(i), Form
I-485A
|
29,213
|
1
|
29,213
|
1.25
|
36,516
|
$37.55
|
$1,371,229
|
Individuals
and households
|
Confirmation
of Bona Fide Job Offer or Request for Job Portability Under INA
Section 204(j), Supplement J
|
37,358
|
1
|
37,358
|
1.00
|
37,358
|
$37.55
|
$1,402,838
|
Individuals
and households
|
Biometrics
Processing
|
578,708
|
1
|
578,708
|
1.17
|
677,088
|
$37.55
|
$25,425,480
|
Total
|
|
|
|
1,223,987
|
|
4,466,268
|
|
$167,713,722
|
* The
above Average Hourly Wage Rate is the May
2019 Bureau of Labor Statistics average wage for All Occupations
of $25.72 times the wage rate benefit multiplier of 1.46 (to account
for benefits provided) equaling $37.55 The selection of “All
Occupations” was chosen because respondents to this collection
could be expected from any occupation.
13. Provide an estimate of the
total annual cost burden to respondents or record keepers resulting
from the collection of information. (Do not include the cost of any
hour burden shown in Items 12 and 14).
• The cost estimate
should be split into two components: (a) a total capital and
start-up cost component (annualized over its expected useful life);
and (b) a total operation and maintenance and purchase of services
component. The estimates should take into account costs associated
with generating, maintaining, and disclosing or providing the
information. Include descriptions of methods used to estimate major
cost factors including system and technology acquisition, expected
useful life of capital equipment, the discount rate(s), and the time
period over which costs will be incurred. Capital and start-up costs
include, among other items, preparations for collecting information
such as purchasing computers and software; monitoring, sampling,
drilling and testing equipment; and record storage facilities.
• If cost estimates are
expected to vary widely, agencies should present ranges of cost
burdens and explain the reasons for the variance. The cost of
purchasing or contracting out information collection services should
be a part of this cost burden estimate. In developing cost burden
estimates, agencies may consult with a sample of respondents (fewer
than 10), utilize the 60-day pre-OMB submission public comment
process and use existing economic or regulatory impact analysis
associated with the rulemaking containing the information collection,
as appropriate.
• Generally, estimates
should not include purchases of equipment or services, or portions
thereof, made: (1) prior to October 1, 1995; (2) to achieve
regulatory compliance with requirements not associated with the
information collection; (3) for reasons other than to provide
information or keep records for the government; or, (4) as part of
customary and usual business or private practices.
There are
no capital or start-up costs associated with this information
collection. Any cost burdens to respondents as a result of this
collection are identified in question 14.
However, there is a
fee charge of:
$1,140 for
filing fee for Form I-485; and $750 (under the age of 14 years)
$1,000 fee
for filing Form I-485A; and
$85
biometric fee for filing Form I-485; and
Form I-485 respondents will incur
costs associated with this collection of information. These costs
include, but are not limited to, hiring attorneys, translators or
preparers, obtaining copies of documents required for submission, and
postage. USCIS estimates the total average cost to respondents to
be:
I-485: $490 (average cost) *
578,708
* 70 percent (estimated weighted average) is the percentage of
respondent estimated would incur any cost. This totals $198,496,844.
The out-of-pocket cost per respondent is estimated at $343
(Calculated: $198,496,844 / 578,708
= $343).
14. Provide estimates of
annualized cost to the Federal government. Also, provide a
description of the method used to estimate cost, which should include
quantification of hours, operational expenses (such as equipment,
overhead, printing, and support staff), and any other expense that
would not have been incurred without this collection of information.
Agencies also may aggregate cost estimates from Items 12, 13, and 14
in a single table.
USCIS establishes its fees using
an activity-based costing model to assign costs to an adjudication
based on its relative adjudication burden and use of USCIS resources.
Fees are established at an amount that is necessary to recover these
assigned costs, plus an amount to recover unassigned overhead (which
includes the clerical, officer, and managerial time with benefits)
and immigration benefits provided without a fee charge. As a
consequence of USCIS immigration fees being based on resource
expenditures related to the benefit in question, USCIS uses the fee
associated with an information collection as a reasonable measure of
the collection’s costs to USCIS. USCIS has established the fee
for Form I-485 at $1,140, I-485 Supplement A at $1,000, and
Biometrics Processing Fee at $85.
The following calculations were
used to determine the estimated cost to the Government:
Form I-485
Estimated number of respondents
(578,708)
x (1) x the $1,140 fee, equaling $659,727,120.
Form I-485, Supplement A
Estimated number of respondents
(29,213)
x (1) x the $1,000 fee, equaling $29,213,000.
Form I-485, Supplement J
Biometrics Processing Fee
Biometrics Fee, equaling
$49,190,180.
The total estimated cost to
the Government is $738,130,300.
The total cost includes the suggested hourly rate for clerical,
officer, and managerial time with benefits, plus a percent for the
estimated overhead cost for printing, stocking, distributing, and
processing of this form.
15. Explain the reasons for
any program changes or adjustments reporting in Items 13 or 14 of the
OMB Form 83-I.
Data
collection Activity/Instrument
|
Program
Change (hours currently on OMB Inventory)
|
Program
Change (New)
|
Difference
|
Adjustment
(hours currently on OMB Inventory)
|
Adjustment
(New)
|
Difference
|
I-485
|
3,619,240
|
3,715,305
|
96,065
|
|
|
|
I-485A
|
36,516
|
36,516
|
0
|
|
|
|
I-485J
|
37,358
|
37,358
|
0
|
|
|
|
Biometrics
Processing
|
677,088
|
677,088
|
0
|
|
|
|
Total(s)
|
4,370,202
|
4,466,268
|
96,066
|
0
|
0
|
0
|
There is an increase in the
estimated annual time burden due to the addition of SSA questions and
instruction language. There are no other program changes.
Data
collection Activity/Instrument
|
Program
Change (cost currently on OMB Inventory)
|
Program
Change (New)
|
Difference
|
Adjustment
(cost currently on OMB Inventory)
|
Adjustment
(New)
|
Difference
|
I-485
|
|
|
|
$198,496,844
|
$198,496,844
|
$0
|
Total(s)
|
$0
|
$0
|
$0
|
$198,496,844
|
$198,496,844
|
$0
|
There is no change to the
estimated annual cost burden due to the addition of SSA questions and
instruction language. There are no other program changes.
16. For collections of
information whose results will be published, outline plans for
tabulation, and publication. Address any complex analytical
techniques that will be used. Provide the time schedule for the
entire project, including beginning and ending dates of the
collection of information, completion of report, publication dates,
and other actions.
This information collection will
not be published for statistical purposes.
17. If seeking approval to not
display the expiration date for OMB approval of the information
collection, explain the reasons that display would be inappropriate.
USCIS will
display the expiration date for OMB approval of this information
collection.
Explain each exception to the
certification statement identified in Item 19, “Certification
for Paperwork Reduction Act Submission,” of OMB 83-I.
USCIS does not request an
exception to the certification of this information collection.
B. Collections of Information
Employing Statistical Methods.
There is no statistical
methodology involved with this collection.
Appendix A: 60-day FRN Comment
Response
On
June 25, 2020 USCIS published a 60-day notice in the Federal Register
at 85 FR 38151. USCIS received comments after publishing that notice.
Below, USCIS describes the 7 comments received and provides a
response.
Commenter
|
Comment
|
USCIS
Response
|
Jean
Publieee
|
Overall
comment that America should stop allowing permanent residence.
Immigrants are a threat to American citizens.
|
This
comment is outside the scope of the form revision. No changes will
be made in response to this comment.
|
Xuan
Lo
|
Part
1, Items 33a-c and 34a-c ask that about the applicant’s
I-94. In the case of an applicant who was granted an Extension of
Stay or Change of Status after the last arrival, it is unclear
whether these questions ask about the I-94 from arrival or the
I-94 from the last approval of Extension of Stay or Change of
Status.
Part
2, Item 9a asks, among other things, whether a relative filed the
associated I-140 for you. It is unclear who “you”
refers to in the case where the I-485 is being filed by a
derivative beneficiary. Should it be answered with “you”
being the principal beneficiary? Also, in a case where the
principal beneficiary self-petitioned (e.g., EB1A or National
Interest Waiver), should a derivative beneficiary answer Yes since
the principal beneficiary (the applicant’s relative) filed
the I-140?
Part
2, Item 13 is a duplicate of Part 2, Item 1.
Part
3, Item 1 added the redundant “to obtain U.S. permanent
resident status” when it already said “to obtain
permanent resident status”.
Part
3, Item 5 asks “Have you ever applied for permanent
residence while in the U.S.?” It is unclear whether this
refers only to Adjustment of Status applications or potentially
other types of applications also.
Part
8, Item 72d, one of the conditions that needs to be met is “I
am not a relative of the Form I-140 petitions”. Is this
condition not met in the case where the I-485 is being filed by a
derivative beneficiary, and the principal beneficiary
self-petitioned (e.g., EBA1A or National Interest Waiver), so that
the petitioner (the principal beneficiary) is a relative of the
I-485 applicant (the derivative beneficiary)?
|
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
|
Anna
Marie Gallagher (CLINIC)
|
Part
1, Item 32.b. includes “Cuban parole” as an option in
the parenthetical. All persons who are paroled for humanitarian
reasons are paroled under INA 212(d)(5). There is no separate
classification for Cubans who are paroled into the country.
Therefore, CLINIC recommends that USCIS delete the words “Cuban
parole.”
Part
2. Items 1 and 13. Questions are duplicative. Questions regarding
whether the applicant is a principal or derivative beneficiary,
and questions about the principal should all be in the same place
on the form.
Part
2, Item 4.a. contains a typo. The number “360” is
written twice.
Part
3. Item 1. Addition of phrase “to
obtain permanent resident status”
is redundant and should be deleted. USCIS should also delete the
word “abroad,” since all U.S. embassies and consulates
are located abroad.
Part
8. Items 29-33. Recommends deleting questions. Questions relate to
possible immigration violations in countries other than the United
States and are not relevant to inadmissibility under INA 212(a).
It is unreasonable to ask applicants for adjustment of status
whether terms used in U.S. law have any equivalency in the laws of
other countries, especially when they have no bearing on the
applicant’s inadmissibility.
Part
8. Item 71. Overall issue is that the revision requires applicants
who are exempt from public charge to explain why they are exempt
from filing Form I-864, and the wording merges two distinct
requirements or exemptions and compounds confusion in the current
form. Suggests the alternative changes to Item 72.:
Insert:
“If you are exempt from public charge, you do not need to
file a Form I-864” before the words “You may need to
file Form I-864.”
Change:
“You may need to file Form I-864” to “If you
are subject to public charge, you need to file a Form I-864
unless you are exempt under one of these categories.”
Change:
“I am EXEMPT from filing Form I-864 because:” to “I
am subject to public charge but EXEMPT from filing Form I-864
because:”
Delete
all text contained in Items 72.f. and h. U and T nonimmigrants
are not subject to public charge.
Delete
all text contained in Items 72.g. and i. Exemptions to public
charge and affidavit of support for T and U nonimmigrants
applying under a different category are subject to that category.
Delete
the text in Item 72.j. If the applicant is exempt from public
charge, it is unnecessary to indicate that they are also exempt
from filing Form I-864.
Delete
the text in Item 72.o. Amerasians are exempt from public charge.
Instructions.
There is an inconsistency between the proposed Instructions and
the proposed Form I-485. On page 5 of the Instructions it states
that USCIS may require the applicant to complete biometrics. On
page 10 of Form I-485 it states that the applicant will be
required to appear for a biometrics appointment. These should be
made consistent.
Instructions.
Page 18, under what documentation to include if an applicant is
unable to obtain certified copies of court dispositions, being
required to submit all of three of the documents (written
explanation from the custodian of the documents explaining why it
is unavailable; written statement from the applicant explaining
why the record is not available and describes the charge,
arrest/conviction, and final outcome, rehabilitation; any other
secondary evidence that shows the disposition, or if unavailable,
one or more written statements from someone other than the
applicant with personal knowledge of the disposition) is
duplicative and overly burdensome.
If
the custodian of the records provides a letter explaining why
records are not available, there is no need to require a statement
from the applicant explaining the same issue. Similarly, if the
applicant can provide a statement explaining the charge and final
outcome of the case, signed under penalty of perjury, the
applicant should not be required to obtain a statement containing
the same information from another witness.
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AILA
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Instructions.
Opposes revision to Instructions relating to signature: “If
USCIS accepts a request for adjudication and determines that it
has a deficient signature, USCIS will deny the request.” The
regulations at 8 CFR 103.2 state that an applicant or petitioner
must sign his or her benefit request, and that a benefit request
will be rejected if it is not signed with a valid signature.
Nowhere in the regulations or the INA is USCIS granted the
authority to deny a benefit request for lack of a valid signature.
Proposal exceeds USCIS authority and is bad policy. Will create
uncertainty if applicant receives a Form I-797 receipt notice and
then denies application. “Deficient signature” is not
defined in the INA, the regulations, or the Policy Manual. Use of
this term leaves stakeholders unclear about which types of
signatures could subject a benefit request to a denial.
Instructions.
Overall issue is requirement to fill in all fields on the form.
Opposes language requiring applicants to fill in all fields. Would
be “a significant policy shift that would impose unnecessary
burdens on I-485 applicants” and attorneys, “create
additional barriers to the I-485 application process,” and
“drain agency resources.” The requirement is
“particularly unconscionable during a national pandemic.”
Delays could impact an individual’s eligibility (may be
subject to new fee rule and incur additional costs to filing).
Instructions.
U.S. Mailing Address. AILA is opposed to prohibiting applicants
from using their attorney or representative’s address as a
valid U.S. mailing address. It interferes with the attorney-client
relationship. Attorney’s address may be the best option to
ensure that any notices sent by USCIS are received and timely
responded to. USCIS has ignored requests for USCIS to send
correspondence to the address of the applicant’s attorney by
selecting the applicable item on Form G-28. If the basis for this
change is the concern regarding physically locating the applicant,
the option for an applicant to use a P.O. box in this section
would “vitiate that concern.”
Instructions.
Page 17, Form I-693. AILA opposes instruction that applicants must
submit Form I-693 at the same time as an applicant files Form
I-485. Current policy permits applicants to submit the Form I-693
concurrently with their application or at any time after filing
the benefit, but before USCIS finalizes adjudication. Language is
in direct conflict with Policy Manual and USCIS offers no
explanation for the policy shift or how it will help applicants.
The Visa Bulletin also becomes current and retrogresses with
little notice, which makes it difficult for applicants who are
waiting for an appointment with a civil surgeon to submit Form
I-693 with the Form I-485.
Instructions.
Page 18, Certified Police and Court Records. Added language would
impose additional, duplicative, and unnecessary evidentiary
burdens on applicants who are unable to obtain certified copies of
court dispositions. By requiring a written explanation on
government letterhead from the custodian of documents regarding
why a certified copy of a court disposition is not available,
USCIS is attempting to add new evidentiary requirements not in the
regulations or INA. Such evidence would be particularly difficult
to obtain for charges, arrests, or convictions that took place
several decades ago, or in foreign countries. AILA recommends
keeping the language in the current (10/15/19) edition of Form
I-485.
Instructions.
Page 18, Foreign Police Certificates. These instructions will
cause confusion with applicants about whether or not this evidence
is required as initial evidence. Recommends that USCIS update the
language to make it clear that the foreign police certificates are
not required as initial evidence. Recommended language: “Although
not required as initial evidence,
USCIS may issue a request for foreign police certificates…”
Instructions.
Page 18, Waiver of Inadmissibility. USCIS has been inconsistent on
the timing of when an applicant should file Form I-601. Recommends
the following revision on Page 18, Subsection 13: “If USCIS
(or the Immigration Judge, if you are in exclusion, deportation,
or removal proceedings) determines that a ground of
inadmissibility does apply to you and you qualify for a waiver,
you will be given the opportunity to apply for a waiver or other
form of relief that would eliminate the inadmissibility.”
Clarification that Form I-601 will only be required after a
finding of inadmissibility has been made will ensure the
applicant’s and USCIS’ resources will be used more
efficiently.
Form
I-485. Page 1, Note to All Applicants. AILA opposes proposed
language “if you leave any fields blank on this form,”
as outlined in previous comment about this policy in the
Instructions.
Form
I-485, Page 2, Part 1. Item 10. USCIS does not clarify whether or
not the “USCIS#” that appears on Form I-766 EAD
documents constitutes an “A#” that should be included
by applicants. Instructions should clarify whether USCIS wants an
EAD USCIS# included.
Form
I-485, Page 4, Part 1, Item 32.a. The revision proposes to
eliminate “visitor, waived through” as an admission
option. AILA recommends adding “waived through” back
into the Form I-485 for greater clarity and to minimize confusion
among applicants who were waived through a port of entry, which is
still a common practice, particularly along the U.S.-Canada
border.
Form
I-485, Page 6, Item 9.d. The placement of these questions in the
subsection “Additional Alien Worker Information” is
confusing. Item 9.a. states that it pertains to only applicants
who selected Item 3.a. (Alien Worker), but Item 9.d. pertains to
all applicants. AILA recommends moving the questions into a newly
created subsection or to another part of the form where they are
more relevant.
Form
I-485. Page 13. Items 29-33. AILA opposes these proposed
questions, as they are not relevant to an applicant’s
eligibility for adjustment of status and are beyond the scope of
INA 212(a). Proposed information collection conflicts with the
Paperwork Reduction Act’s purpose of minimizing the
paperwork burden for individuals. USCIS provides no justification
for how collecting this information outweighs the PRA’s goal
of minimizing the paperwork burden for individuals completing Form
I-485. Recommends deleting these items.
Notification
of Medical Service Requirements for National Interest Waiver
Physicians. General comment is that AILA recommends USCIS create a
process, such as a standalone form, by which applicants can submit
the information outlined in the Notification of Medical Service
Requirements for National Interest Waiver Physicians affirmatively
to USCIS and not have to wait for USCIS to directly ask for it.
This will allow evidence to be submitted in a timely way, reducing
the risk of lost documentation and decreasing visa backlogs while
applicants wait for an RFE from USCIS to submit their information.
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Anonymous
(posted 8-12-20)
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The
classification of immediate relative needs to be amended, as it is
not a one way street. If a parent is an immediate relative
regardless of the child’s age of sponsorship, that begs to
say that child will always be an immediate relative regardless of
their age. In the medical field, if a person does not have an
emergency contact, they go to the next of kin, their parent, or
their child, (regardless of age but the child has to be over 18 as
under 18 would be determined a minor who it now allowed to make
decisions for the adult parent. Does this make either category any
more or less a direct/immediate relative? No, because they are
referred to the direct relation of the parent or child …
depending on who is admitted). The same goes to say that this
category or immediate relative is misleading on one front and
accurate the other, and in such, it contradicts each other because
on one side it states, one is an immediate relative, and on the
other it is saying, the other person isn’t (makes no logical
sense and can confuse any non-English speakers). Same goes with
the classification of what is considered a minor, on one side it
is shown to be under 18, yet on another it is under 21. There
should be a solid understanding of which is considered a minor. As
we all know, 21 for most is still very young.
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Rachel
Grant
|
The
commenter includes a lengthy comment concerning the instruction
that Form I-485 may be denied due to blank fields on the form. The
commenter objects to this change and wrote that this policy is
“entirely at odds with the mission of a benefit granting
agency” and there “is no reasonable justification for
this policy.” The commenter indicates that if USCIS has
“some sort of objective analysis that can establish blank
fields are an actual problem, it should be made public …”
The commenter also thinks applicants will be confused about how to
respond to questions and suggests USCIS needs to re-write
conditional questions.
Part
1, item numbers 14-15 (page 2).
Item number 14—“is your physical address the same as
your mailing address”—has no purpose. You’ve
already threatened the applicant with denial if any fields are
blank. Item #12 asks for the current mailing address, and #15 asks
for the current physical address. There is no indication that an
affirmative answer to #14 means that #15 can be left blank, and it
will be plainly obvious to anyone whether #12 and #15 are the
same. So why is there a separate question asking about it?
Part
1, item numbers 21-24 (page 3).
What is the purpose of the word “officially” in this
question? Can the SSA unofficially issue cards? Isn’t what
you are trying to ascertain is whether the applicant has ever been
assigned a Social Security number? At least based on the
instructions, it doesn’t seem to matter whether the
applicant received a card but whether a number was assigned. The
question would be more precise as “Has the Social Security
Administration (SSA) ever issued a Social Security card or
assigned you a Social Security number?” For #23, the
Instructions indicate that this question can be used to request a
new SSN or have a card reissued, so it would be more precise if
phrased as “Do you want the SSA to issue or re-issue you a
Social Security card?” Also, in #24, you use the
abbreviation “SSN” without ever having defined it,
which you could most logically do at #22—in which case you
could use the abbreviation in #23.
Part
1, item number 33 (page 4). The
instructions for these questions are “Provide the
information on your Form I-94 Arrival-Departure Record Number. But
the word “Number” should not be here. You are asking
about information from the Arrival-Departure Record. That is also
what this item number is called in the Instructions.
Part
1, item number 34 (page 4). This
is another example of where the blank fields policy discussed
above causes confusion. It asks for the name that appears on the
applicant’s I-94, but to write “NA” in the
fields if the applicant was not issued an I-94. What about
applicants who have no middle name? Can they leave item number
34.c. blank, since that is “exactly as it appears” on
the I-94? Or will that risk a denial? Do they put “NA”
even though they were issued an I-94, just to avoid this absurd
result, even though that conflicts with the directions for this
question?
Part
2, item number 2.b. (page 4). The
subparts of this question should be indented the way they are in
#2.a. and #2.c.
Part
2, item number 4.a. (page 5). There
is a typo in this question—“360” appears twice.
Part
2, Additional Alien Worker Information (page 6).
The instructions here say that #9.a. should only be answered if
#3.a. was selected. (That instruction is also present at #3.a,
referring to #9.a.) But #9.b. and #9.c. also need conditional
instructions, because they only need to be answered if the
applicant selects “Yes” to #9.a. This instruction
exists in the current Form I-485 and it’s unclear why it
would be removed, as the condition hasn’t changed. Those
questions would still only be answered if #9.a. is “Yes.”
Part
2, item number 13 (page 7). How
is this question any different from what is asked in Part 2, #1?
If you’re asking whether the I-485 applicant is also the
principal beneficiary of the underlying immigration petition, then
this needs to be rephrased and not use the word “applicant.”
If this question is a duplicate of #1, it should be removed.
Part
3, Additional Information About You (page 7).
The
new draft proposes to add words to #1 that are already present,
making the addition redundant. In addition, you have removed the
instructions to only answer #2.a. - 4. if the answer to #1 is
“Yes.” Why? Those questions are still only applicable
if the individual selected “Yes” to #1. Is this part
of your “blank fields” policy discussed above where
you’re trying to trap people into a procedural denial? Many
practitioners have been completing Form I-485 for years and would
reasonably skip over these questions. You should restore the
instructions and—if you insist on keeping the blank fields
policy—add instruction to write NA in the fields if the
answer to #1 was “No.” The same principle applies to
#5, because #6-#8 are only applicable if the answer to #5 is
“Yes.”
Part
6, item numbers 7, 14, and 21 (page 11).
These questions are unnecessary and only serve to cause
additional confusion. “Biological child” is not a
“legal relationship” between a parent and a child. A
child born in wedlock is a legal child, irrespective of biology.
There are sufficient regulations that define the parent-child
relationship, in all of its permutations, for the purposes of
immigration and. There is absolutely no reason to require an
applicant to provide invasive information about the way in which
each of his or her children came to be, particularly since this
form requires identification of all children, including adults and
those who are not even applying for any immigration benefit. The
supporting evidence required to be produced to establish the
parent-child relationship for any derivative applications will
sufficiently demonstrate the nature of the parent-child
relationship, to the extent it is relevant.
Part
8, item numbers 17 & 18 (page 13). First,
these questions have a grammatical error because it should be
“three or more persons WHO acted together,” not “three
or more persons THAT acted together.” More importantly,
though, these questions are confusing, subjective, and
unnecessary. There are enough questions asking about criminal
activity and membership in organized groups. This also risks
requiring victims to disclose information about their associations
with criminal groups who victimized them, which has no bearing on
an applicant’s admissibility to the United States.
Part
8, item numbers 29-33 (page 13). These
questions do not seem relevant. Participation in the immigration
system of another country does not make an applicant inadmissible
to the United States. Not all countries have a system of work
authorization, particularly third-world countries, and the idea of
being “unlawfully present” is a very American concept
that may or may not have a direct equivalent in other places.
Furthermore, it is unfair to ask applicants to have an
understanding of the immigration systems of every country they
have ever been in. The current state of global migration, the
ever-expanding refugee crisis, and the fluctuating boundaries of
some younger nation-states makes all of this subjective and
difficult to ascertain. We should not be requiring anyone to make
such determinations when it has no bearing on their admissibility
to the United States.
Part
8, item number 34 (pages 13-14). You
removed the instruction that states the 2nd and 3rd subpart of
this question only need to be answered if the first subpart is
answered “Yes,” but these are still items that are not
applicable to most applicants. This is the same situation
described in Point #9 above. Don’t try to trap people into
making a mistake. Restore the instruction or add an “N/A”
check box to these questions so that they can be answered if
you’re going to require it of everyone.
Part
8, item number 44 (page 14). Why
did you remove the exclusion for purely political crimes? There
are an increasing number of authoritarian regimes around the world
that punish dissidents for such crimes. In fact, China’s new
national security law imposed on Hong Kong so severely punishes
political crimes that our own government has moved to sanction
China and U.S. universities are taking steps to project Chinese
students. Your removal of this exclusion suggests that you intend
to consider purely political crimes as potential reasons for
inadmissibility or exclusion. That is reprehensible and contrary
to the foundational principles of our country.
Part
8, item number 51 (page 15). First,
you have two typographical errors in this question. There is a
closing parenthesis in line 3 instead of an opening parenthesis,
and in line 9, you have “soliciting BE any means” when
it should be “soliciting BY any means.” More
importantly, this question—to the extent that it would
indicate inadmissibility due to criminal acts—should more
explicitly exclude victims of sex trafficking.
Part
8, item numbers 59.b. and 61.b. (pages 15-16).
This
question is too broad and vaguely worded. Anyone who has ever shot
a gun would likely have to answer “yes” to this
question. Even target practice has the intent to cause damage to a
target, which is someone’s property. Anyone who has ever
used pepper spray to defend herself from a violent attacker would
have to answer “yes” to this question, because pepper
spray is a dangerous device and the intent was to harm the
attacker, albeit in self-defense. Any inquiries in this Part of
the Form need to be limited only to those activities that would
actually make someone inadmissible.
Part
8, item number 61.d. (page 16). There
is a typographical error in this question. It says “death OF
bodily injury” when it should say “death OR bodily
injury.”
Part
8, item number 62 (page 16). This
question is also too broad and encompasses lawful activity. Anyone
who lawfully sold handguns to a police department would have to
answer “yes.” Again, this section is supposed to be
about criminal activity, so it should be limited to activity that
is actually criminal.
Instruction
#14 on page 9 seems
incredibly broad and burdensome. Why do you need to know about
someone’s membership in Boy Scouts, or Student Council, or
the Drama Club, or Future Farmers of America, or their Homeowner’s
Association, or a particular church, or the Delta frequent flyers
club? What about registration as a member of a political party? Or
donating to the ASPCA—that’s an association with a
group. (It gets me on their mailing list, at least.) As a country
that put freedom of association in our Constitution’s Bill
of Rights, it’s incredibly hypocritical and borderline
unconstitutional to suggest that an individual’s association
with others would be a reason he or she would be ineligible for
permanent residency.
[I-485
Instructions] The
filing fees and biometric fees on page 19 do not reflect the new
fees that will be in effect by the time this revised form is
finalized. Similarly, page 20 indicates that a returned check fee
will be charged, but the most recent Final Rule on USCIS’s
new fee schedule indicates that there will no longer be a returned
check fee.
[I-485
Instructions] The
instructions for derivative applicants at the top of page 12 fails
to consider the situation in which derivative applications are
submitted together with the principal’s concurrently filed
immigration petition and I-485. In that case, no approval or
receipt notice yet exists, either for the principal’s
immigration petition or the principal’s adjustment
application.
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applicable.
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applicable.
In
response to this comment, USCIS added “(SSN)” to Part
1, Item 22 for clarity. No other changes will be made based on
this comment. These questions are consistent with similar
questions on Form I-765 (Application for Employment
Authorization).
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Boundless
Immigration Inc.
|
Commenter
objects to the “new requirement[] for applicants to fill in
fields, even when a reasonable person would leave such fields
blank … At best, these changes are picayune and
unnecessary. At worst, they are a pretext to deny applications for
adjustment of status for no legitimate reason, as has recently
become the agency’s well-documented practice with regard to
certain humanitarian visa applications. USCIS should not demand
that applicants fill out every field, even when a reasonable
person would leave such fields blank – and the agency should
certainly not deny applications for failure to ‘write none
or equivalent in the blanks.’”
[Part
3, Item Numbers 5-8]
The proposed Form I-485 adds the question, “Have you ever
applied for permanent residence while in the U.S.?” This is
followed by an additional demand for the following information
(Page 7, Part 3): USCIS Field Office or Service Center that
adjudicated your application. It is incumbent on USCIS to know
which of its own field offices or service centers adjudicated a
prior Form I-485. Requiring the applicant to provide this
information would serve only to increase the complexity of the
form, the burden on the applicant, and the likelihood of errors,
for no legitimate reason. Such adjudications may have happened
years in the past, and while an applicant may be reasonably
expected to retain documentation of the result and date of the
adjudication, only USCIS need retain records of the specific
bureaucratic unit that adjudicated the form. If USCIS makes this
proposed change, it will effectively force many applicants to
submit a FOIA request to acquire this information – a
process that is expensive, complex, and slow. By the time USCIS
responds to such a FOIA request, the applicant may no longer be
eligible to adjust status.
[Part
3, Item Numbers 9-20] In
addition to requiring a detailed employment history, the proposed
Form I-485 adds an entirely new requirement for an equally
detailed educational history (Page 7, Part 3): Provide ALL of your
employment and educational history for the last five years,
whether inside or outside the United States. Provide the most
recent employment or school attended first. USCIS provides no
justification for this additional burden, and educational history
does not appear to constitute necessary evidence for adjustment of
status eligibility.
[Part
3, Item Numbers 9-20]
In addition to listing employment history, the proposed Form I-485
add the following new requirements (Page 7, Part 3): Include
periods of self-employment or unemployment. For each period of
unemployment, list source of financial support. USCIS provides no
justification for this additional burden. Periods of unemployment
and sources of financial support do not appear to constitute
necessary evidence for adjustment of status eligibility. USCIS has
already gone through a rulemaking process for public charge
determinations, under which the agency demands redundant
information about unemployment and financial support in its Form
I-944 (“Declaration of Self-Sufficiency”).
Commenter
raises “Defects Under the Paperwork Reduction Act” and
the “proposed changes [] violate both the spirit and the
letter of the PRA.”
-None
of the proposed changes to the collection of information are
necessary for the proper performance of the functions of the
agency, as status quo Form I-485 already allows the agency to
obtain more than enough information to comply with its regulatory
and statutory obligations. Likewise, the proposed collection of
information will have limited-to-no practical utility for the
agency in the performance of its statutorily authorized duties. If
the agency believes otherwise, it has provided no basis for this
belief in the information collection request that was made
available as the sole basis for public comment.
-The
agency has made no effort to provide transparency about its
methodology or the assumptions underlying its estimate of the
burden of the proposed collection.
-As
described above, the proposed information collection does nothing
to enhance the quality, utility, or clarity of the information to
be collected. On the contrary, each of the proposed changes would
substantially impair the clarity of the information to be
collected, as they are phrased in a way that is more ambiguous
than the status quo.
-Nothing
in the proposed changes would reduce, let alone minimize, the
burden of the collection of information on those who are to
respond. The proposed changes would be comparably onerous whether
the information is collected via traditional or electronic means,
because the burden stems from the nature of the information
demanded, not the relative difficulty of transmitting this
information in paper format.
“Additional
PRA Concerns”
-
[Absence
of the required description of agency’s need and use] DHS
Management Directive 142-01 establishes the department’s
policy implementing the provisions of the Paperwork Reduction Act
concerning collections of information. This management directive
(referred to here as “DHS policy”) prohibits an
information collection unless the Federal Register notice includes
“a brief description of the need for the information and
proposed use of the information” (§
1320.5(a)(1)(iv)(B)(3)). In fact, the agency’s notice
provides no such description, and does not provide the public with
any way to ascertain the agency’s need for, or proposed use
of, the additional information under the proposed changes. The
notice states simply, “The information on Form I-485 will be
used to request and determine eligibility for adjustment of
permanent residence status.” This is so brief as to be
meaningless.
-[Failure
to comply with the “least burdensome” standard] DHS
policy requires that, “[t]o obtain OMB approval of a
collection of information, an agency shall demonstrate that it has
taken every reasonable step to ensure that the proposed collection
of information … is the least burdensome necessary for the
proper performance of the agency's functions to comply with legal
requirements and achieve program objectives” (§
1320.5(d)(1)). As described in detail above, the proposed changes
would create significant new burdens and are wholly unnecessary
for the proper performance of the agency’s functions. The
agency has not
demonstrated
otherwise to the public, and it is difficult to conceive of how it
has demonstrated otherwise to the DHS Chief Information Officer or
to OMB.
-[Violation
of the three-year record retention limit] DHS policy states that,
“[u]nless the agency is able to demonstrate, in its
submission for OMB
clearance,
that such characteristic of the collection of information is
necessary to satisfy statutory
requirements
or other substantial need, OMB will not approve a collection of
information …
requiring
respondents to retain records, other than health, medical,
government contract, grant-in-aid, or tax records, for more than
three years” (§ 1320.5(d)(2)). There is certainly no
statutory requirement or substantial need for USCIS to effectively
force applicants to retain records of prior adjustment of status
adjudications for any number of years, placing the burden on the
applicant to remember which field office or service center
adjudicated the form.
-[Inadequate
agency review] DHS policy provides that the agency designate a
“Senior Official” to carry out its responsibilities
under
the Paperwork Reduction Act, that such official shall “review
each collection of
information
before submission to OMB for review,” and that such review
shall include, among
other
things:
● an
evaluation of the need for the collection of information, which
shall include, in the
case
of an existing collection of information, an evaluation of the
continued need for such
collection;
● a
functional description of the information to be collected;
● a
plan for the collection of information; and
● a
specific, objectively supported estimate of burden, which shall
include, in the case of an existing collection of information, an
evaluation of the burden that has been imposed by
such
collection (§ 1320.8(a)).
Based
on the flawed assumptions and scant justifications provided in the
information collection
notice,
there is no evidence that the agency’s Senior Official
adequately conducted these
elements
of the required review.
-[Inadequate
disclosure of agency plans] DHS policy requires that the Senior
Official “shall ensure that each collection of information …
informs and provides reasonable notice of the potential persons to
whom the collection of information is addressed of,” among
other things:
● the
reason the information is planned to be and/or has been collected;
and
● the
way such information is planned to be and/or has been used to
further the proper
performance
of the functions of the agency (§ 1320.8(b)).
The
information collection notice includes no such disclosures, and
there is no evidence that the
agency’s
Senior Official plans to make such disclosures in the future.
-[Apparent
failure to provide OMB with required certifications]
Section
1320.9 of the DHS Management Directive (“Agency
certifications for proposed collections of information”)
states in its entirety:
As
part of the agency submission to OMB of a proposed collection of
information, the agency (through the head of the agency, the
Senior Official, or their designee) shall certify (and provide a
record supporting such certification) that the proposed collection
of
information-
(a)
is necessary for the proper performance of the functions of the
agency, including that
the
information to be collected will have practical utility;
(b)
is not unnecessarily duplicative of information otherwise
reasonable accessible to the agency;
(c)
reduces to the extent practicable and appropriate the burden on
persons who shall
provide
information to or for the agency, including with respect to small
entities, as
defined
in the Regulatory Flexibility Act (5 U.S.C. 601(6)), the use of
such techniques as:
(1)
establishing differing compliance or reporting requirements or
timetables that
take
into account the resources available to those who are to respond;
(2)
the clarification, consolidation, or simplification of compliance
and reporting
requirements;
or
(3)
an exemption from coverage of the collection of information, or
any part
thereof;
(d)
is written using plain, coherent, and unambiguous terminology and
is understandable to those who are to respond;
(e)
is to be implemented in ways consistent and compatible,
to the
maximum extent practicable, with the existing reporting and
recordkeeping practices of those who are to respond;
(f)
indicates for each recordkeeping requirement the length of time
persons are required to maintain the records specified;
(g)
informs potential respondents of the information called for under
§ 1320.8(b)(3);
(h)
has been developed by an office that has planned and allocated
resources for the
efficient
and effective management and use of the information to be
collected, including the processing of the information in a manner
which shall enhance, where appropriate, the utility of the
information to agencies and the public;
(i)
uses effective and efficient statistical survey methodology
appropriate to the purpose
for
which the information is to be collected; and
(j)
to the maximum extent practicable, uses appropriate information
technology to reduce burden and improve data quality, agency
efficiency and responsiveness to the public.
The
information collection notice does not inspire public confidence
that the agency has fulfilled its own certification requirements.
In particular:
● As
described in detail above, there is no evidence that the proposed
changes are
“necessary
for the proper performance of the functions of the agency,
including that the information to be collected will have practical
utility.”
● The
proposed changes would require applicants to information that is
“unnecessarily duplicative of information otherwise
reasonable accessible to the agency,” i.e. the correct
USCIS
office with jurisdiction over a prior adjustment of status
adjudication.
● The
proposed changes certainly do not “reduce[] to the extent
practicable and appropriate the burden on persons who shall
provide information to or for the agency, including with
respect
to small entities.” In fact, the agency makes no mention of
the great many
nonprofit
organizations and small law firms that help immigrants complete
their
naturalization
forms, almost all of which are small entities under the Regulatory
Flexibility
Act that would be unduly burdened by the proposed changes,
including the new education and unemployment history requirements.
of
those who are to respond.” The proposed changes would,
retroactively and with harm
to
reliance interests, require a substantial change to these
reporting and recordkeeping
requirements,
as many respondents would need to locate prior immigration records
going back years or even decades.
Conclusion
Section
1320.5(f) of the DHS Management Directive states that, “to
the extent that OMB
determines
that all or any portion of a collection of information is
unnecessary, for any reason,
the
agency shall not engage in such collection or portion thereof. OMB
will reconsider its
disapproval
of a collection of information upon the request of the agency head
or Senior Official
only
if the sponsoring agency is able to provide significant new or
additional information
relevant
to the original decision.”
In
light of the discussion above, the agency has only three options
that are fully consistent with
this
DHS policy, along with relevant OMB policies, Executive Orders,
agency regulations, and
statutes:
(1)
Rescind this information collection notice and retain the status
quo Form I-485.
(2)
Rescind this information collection notice and publish a new
information collection notice
that
actually reduces the paperwork burden of the status quo Form
I-485.
(3)
Rescind this information collection notice and publish a proposed
rule under the
Administrative
Procedure Act that provides a full explanation for public comment
as to why the
proposed
changes are consistent with relevant regulations and statutes.
|
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Under
5 CFR 1320.3(I), OMB requires that an agency demonstrate
“practical utility” of the information collected.
USCIS demonstrates the practical utility of the information
collected in the Form I-485 in the accompanying Supporting
Statement A Justification, question 1. (See above.) While some of
the edits to this revision of the Form I-485 were minor clarifying
edits, some edits were more substantive. For example, we have
added a Social Security Administration (SSA) section to streamline
respondents’ ability to request a Social Security Number
and/or card along with instructions. This addition would
eliminate the need for the respondent to complete a separate
information collection with SSA that would require similar
information be collected. This section is voluntary. Other
examples of changes to the Form I-485 include a request for the
respondent to provide more information about employment,
relationships, etc. This information would provide the respondent
the opportunity to update information and help USCIS verify
identify and identify cases of fraud. A final example is the
transfer of the National Interest Waiver (NIW) letter from OMB
Control No. 1615-0063 to the Form I-485 OMB Control No. 1615-0023.
Consolidating these information collections under one OMB Control
number will streamline their review. Other edits made in this
update reflect a similar effort to identify efficiencies for the
respondent and USCIS.
In
compliance with 5 CFR 1320.9, USCIS shares its methodology on
estimating burden in the Supporting Statement A, questions 12-15.
See
response above.
USCIS
understands that new request for information may increase the time
and/or cost burdens associated with any information collection;
similarly, removing information requested may decrease the time
and/or cost burdens associate with any information collection.
Specific to the Form I-485, this update will result in an increase
time and cost burden for some respondents. USCIS has estimated,
reported, and explained this increase in the Supporting Statement
A, questions 12-15.
USCIS
explained the use of and need for Form I-485 in the abstract that
was provided in the Federal Register notice. Additional details
are provided in the supporting statement that was submitted to OMB
with this information collection request.
The
management directive cited by the commenter provides guidance on
what USCIS must include in the final ICR and not what is required
for the proposed form and 60-day notices.
The
certifications required by 5 CFR 1320.9 cited by the commenter are
provided in the submission provided to OMB after considering the
comments on the 60-day Federal Register notice and are not
required to be in the Federal Register notice. The commenter is
encouraged to review out justifications provided in the package
submitted to OMB.
See
response above regarding the efficiencies gained through the
revisions. Additionally, see the Supporting Statement.
Concerning
the comment on record retention, USCIS deleted Part 3, Item
Numbers 6 and 8 from the form in response to comments.
DHS
and USCIS have provided an explanation in the Supporting Statement
certifying that this information collection meets the requirements
of 5 CFR 1320.
See
the Supporting Statement. 5 CFR 1320 does not require this
information in a Federal Register Notice.
USCIS
agrees that it is necessary for the “Senior Official”
to certify that the information collection request (ICR) complies
with 5 CFR 1320.9 and the related provision of 5 CFR 1320.8(b)(3),
and as summarized by the comments. USCIS had not submitted an ICR
to OMB at the time this comment was received during the 60-day FRN
in compliance with 5 CFR 1320.8. However, in addition to the
information collection, Supporting Statement, etc., USCIS will
also include a “Certification for Paperwork Reduction Act
Submissions” to OMB for review as required by the Paperwork
Reduction Act. This certification will be made publicly available
at www.reginfo.gov.
|
Appendix B: 30-day FRN Comment
Response
On
September 29, 2020 USCIS published a 30-day notice in the Federal
Register at 85 FR 61023. USCIS received 6 comments after publishing
that notice. One comment was out of scope and for this reason it is
not described below. Below, USCIS describes the 5 salient comments
received and provides a response.
Commenter
|
Comment
|
USCIS
Response
|
Kim
Kushner Dominguez
|
Please
add VAWA as an option in Public Charge + I-864 Exemptions list in
Part 8 questions 62 on the form.
|
Not
applicable.
|
Monica
Kane
|
Objects
to the new blank space policy that prohibits any blanks on the
form and requires “None” or “N/A”. Refers
to and reiterates submitted by AILA on this issue.
Part
8, Item Numbers 71 and 72 are confusing to practitioners and
applicants. Supports the comments CLINIC submitted at the 60-day
public comment period.
Part
1, Item 5, “Other Date of Birth Used”: This is an odd,
confusing, and unnecessary addition to the form. The subsequent
language asking the applicant to provide any other date of birth
used in Part 14, Additional Information, is more than adequate to
cover instances where an applicant may have used a different date
of birth, whether through confusion, error, or fraud. This
language should follow Item 4, “Date of Birth,” and
item 5 should be stricken.
Part
1, Item 10, “Any other…A number assigned to you”:
This clarification is welcome because
the
current version of the form just appears to ask for the
applicant’s A number for a second time, but it seems like it
would be more appropriate to include it where the initial A number
is requested.
Part
1, Items 20-23, “Social Security Card”: This proposed
language mirrors that included on the current version of Form
I-765. Usually, an adjustment of status applicant will have their
Form
I-765
adjudicated (and Social Security number issued) prior to the
adjudication of Form I-485 so
this
feels redundant (although occasionally it could be helpful where
Form I-485 is actually
adjudicated
first). It is also unclear whether Social Security will know not
to issue a new number upon adjudication of Form I-485 to a person
who has already been assigned a number upon adjudication of Form
I-765 (or to someone who already had a number assigned prior to
applying
for
adjustment of status). At times, USCIS adjudicates Form I-765 and
I-485 for one applicant
within
days of each other, and I would be concerned about duplicate
numbers being assigned, unless Social Security already has a
mechanism in place to prevent this.
Part
2, “Application Type or Category”: The proposed
language indicating to select only one box is confusing for
applicants under categories 2a, 2b, 2c, 2f, 3a, and 4a, where
there is a box for the main category (e.g., “Immediate
Relative of a U.S. citizen”) as well as for the subcategory
(e.g., “Spouse of a U.S. citizen”). This confusion may
be alleviated by removing the checkbox next to the main category,
where there are separate subcategories to choose from.
Part
2, “Application Type or Category”: In trying to guide
applicants to select the correct
category,
some of the descriptions can be misleading, particularly where
Child Status Protection
Act
provisions may apply. In 2f – “VAWA self-petitioning
child,” including “(unmarried and under
21
years)” ignores the fact that some VAWA self-petitioning
children maybe be over 21 years old at the time they apply for
adjustment of status (or even when they file their VAWA
self-petition in the case of certain petitioners between the ages
of 21 and 25).
Part
2, “Employment and Educational History”: Requesting
information about source of support for periods of unemployment
seems unnecessary. If a person is subject to the public charge
ground
of inadmissibility, they will complete and submit Form I-944 with
abundant data and
evidence
regarding their financial status. Source of financial support
should be irrelevant for
applicants
who are not subject to the public charge ground of inadmissibility
and not required to submit Form I-944.
|
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
USCIS
appreciates this comment. USCIS notes that not all adjustment
applicants will file Form I-765 concurrently with Form I-485,
therefore Part 1, Item Numbers 20-23 are not necessarily
redundant. Also, not all adjustment applicants will answer “Yes”
to Item Number 22 to request a Social Security card. Additionally,
SSA has robust internal data matching routines in place to
cross-reference the data received from DHS/USCIS through the EBE
(I-765 and I-485 processes) against SSA’s existing records
and prevent the issuance of a new SSN to an applicant who has
already been assigned a number. If SSA finds the individual
already has an SSN, a new SSN will not be assigned. Rather
the individual would get a replacement SSN card for their current
number. This process is in place for all of SSN card
processing to prevent multiple SSN assignment to the same
individual.
Not
applicable.
Not
applicable.
Not
applicable.
|
CLINIC
|
Part
1. Information About You
Question
#32b includes “Cuban parole” as an option in the
parenthetical. All persons who are paroled for humanitarian
reasons are paroled under INA § 212(d)(5). There is no
separate classification for Cubans who are paroled into the
country. Therefore, CLINIC recommends that USCIS delete the words
“Cuban parole.”
Part
2. Application Type or Filing Category
Question
#4a, Religious Worker, contains a typo. The number “360”
is written twice.
Questions
#1 and #13 are duplicative. Questions regarding whether the
applicant is a principal or derivative beneficiary, and questions
about the principal, should all be in the same place on the form.
Part
3. Additional Information About You
Question
#1 reads: “Have you ever applied for an immigrant visa to
obtain permanent resident status at a U.S. embassy or U.S.
consulate abroad to obtain permanent resident status” [added
language in italics]. The proposed added language is redundant and
should be deleted. USCIS should also delete the word “abroad,”
since all U.S. embassies and consulates are located abroad.
CLINIC
commented that Part 8, Questions 29-33 relate to possible
immigration violations in countries other that the U.S. and are
not relevant to inadmissibility under INA 212(a). They also said
it is unreasonable to ask applicants for adjustment of status
whether terms (e.g., “unlawful presence”) used in U.S.
law have any equivalency in the laws of other countries,
especially when they have no bearing on the applicant’s
admissibility. CLINIC strongly recommends that these questions be
deleted.
CLINIC
commented that Part 8, Questions 71-72 and the corresponding
instructions are confusing, especially because Question 72a-n
include applicants who are both exempt from public charge and
those who are subject to public charge but exempt from the
affidavit of support. Some of the confusion is because the form
deletes what is currently #61 that asks if the applicant is exempt
from public charge; if the applicant answers “Yes” he
or she can skip #62. But the proposed revised form still makes
applicants answer the follow up question (now #72) and explain why
they are exempt from public charge. CLINIC also says that T and U
nonimmigrants should not be listed in #72. CLINIC recommends
keeping the current language on the Form I-485 but eliminating
#62f and 62g; CLINIC also suggested alternative edits to more
substantively revise Question #72.
There
is an inconsistency between proposed Instructions and the proposed
I-485. On page 5 the Instructions it states that USCIS may require
the applicant to complete biometrics. On page 10 of the proposed
Form I-485 it states that the applicant will be required to appear
for a biometrics appointment. If the Form I-485 will be changed,
then the instructions should be consistent.
For
the instructions (p. 18) about applicants who are unable to get
certified copies of court dispositions, CLINIC commented that
requiring an applicant to submit all three of these documents is
duplicative and burdensome:
A
written explanation on government letterhead from the custodian
of the documents explaining why it is unavailable (unless
generally unavailable);
Written
statement from the applicant that explains why the record is not
available and describes the charge, arrest/conviction, and final
outcome, rehabilitation; and
Any
other secondary evidence that shows the disposition of the
criminal case; or if secondary evidence is not available, one or
more written statements from someone other than the applicant
with personal knowledge of the disposition.
If
the custodian of the records provides a letter explaining why
records are not available, there is no need to require a statement
from the applicant explaining the same issue. Similarly, if the
applicant can provide a statement explaining the charge and final
outcome of the case, signed under penalty of perjury, the
applicant should not be required to obtain a statement containing
the same information from another witness.
|
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
|
Massachusetts
Law Reform Institute (Ben Gessel)
|
Instructions,
Page 6, How to Fill out Form I-485, and Form I-485, Page 1, Note
to All Applicants. Opposes the proposed language to reject or deny
applications with blank responses, which represents a significant
policy shift that would impose unnecessary burdens on I-485
applicants and the attorneys who represent them, create additional
barriers to the I-485 application process, and needlessly drain
agency resources at a time when USCIS is claiming dire financial
straits.
Puts
already-vulnerable victims further at risk of harm by delaying
the adjudication of their applications
Has
caused some individuals to lose their eligibility altogether
Particularly
unconscionable during the national pandemic
Takes
the agency too long to reject or deny applications
Imposes
unnecessary obstacles for applicants to file
Part
8, Questions 71-72.p. Delete current Questions 62.f. and 62.g.
rather than add a separate category for VAWA applicants instead of
merging the two requirements or exemptions of public charge and
affidavit of support. Creates confusion as-is by asking applicants
if they are exempt from public charge and then making them explain
why they are exempt from filing Form I-864. Proposed revision
(Question 71) deletes the language from current Question 61
stating if he applicant is exempt from public charge, he/she can
skip the I-864 questions.
Part
2, Questions 7-18.c. Whether or not an adjustment applicant has a
particular educational background is irrelevant to establishing
eligibility for adjustment of status itself and has limited
applicability to only the admissibility criteria for where
education is relevant—criteria that do not apply to all
adjustment of status applicants. Duplicate questions on the Form
I-944.
Self-support
questions appear to impose an ultra vires eligibility question for
an individual to attain adjustment of status under the INA and
related statutes, as Congress never required all adjustment
applicants to demonstrate an absolute ability to support
themselves. Also duplicates questions from I-944.
|
Not
applicable.
Not
applicable.
Not
applicable.
|
Rachael
Grant
|
Part
1, Question 23. If question cannot be left blank, more instruction
should be added because most will leave it blank if the answer to
Question 22 is “No.”
Part
2, Question 2.b. The subparts of this question should be indented
the way Questions 2.a. and 2.c. are indented.
Part
3, Question 15. This section has been modified to include school
so the item number should say “Employer, Company, or
School,” similarly to Questions 7 and 11.
Part
4, Questions 7-8 and 15-16. Should be instruction for applicants
whose parents are deceased due to blank fields policy.
Part
7, Question 5. Maroon is not an eye color.
Part
8, Questions 43.b., 54.b., 73.b., and 84. Yes/No questions need an
“N/A” box or special instructions, similar to 34.b.
and c.
Part
8, Question 51. Two typos – closing parenthesis in the third
line instead of an opening; 9th
line has “soliciting be any means” when it should be
“soliciting by any means”
Part
8, Question 84. Appears to be a space missing after the comma
before “was a severe…”
Footer.
Don’t forget to change the edition date.
Instructions,
Page 20. Change filing fees in light of court injunction on new
fee schedule.
Instructions
for Part 1, Question 10. Provide clarification between paragraphs
4 and 5 on page 7 on whether the USCIS# (a nine-digit number that
starts with a 1) is considered an A number for this purpose.
Instructions,
Page 7, Paragraph 8. Says “completing Item Numbers 20-23 is
optional” but under blank fields policy an application can
be rejected or denied for blank fields. Instructions should be
modified to explain how to answer.
Supplement
J, Pages 5 and 6. Header box for Part 8 should specify that it is
contact info, etc. for the “Person Preparing Parts 5-8 of
This Supplement” (not 4-8).
|
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
Not
applicable.
|
| File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
| File Title | Supporting Statement A Template 2019-04-03.docx |
| Author | TSA Standard PC User |
| File Modified | 0000-00-00 |
| File Created | 2021-03-22 |