1. Employment Based Adjustment of Status Interviews
Staci M. Jenkins, Partner, Thompson Hine
Neil Fleischer, Co-Founder, The Fleischer Law Firm

2. Agenda Role of the Attorney Preparation for the Interview
Issues to Anticipate
Post Interview Concerns
To start out – should an interview even occur? Initial guidance was that interviews would be scheduled for cases filed after March 6, It seems that interviews are being scheduled for those filed before this date. While we understand interviews could be discretionary before, it seems they are being scheduled for all. Has there been a change in guidance or in practice on this?

3. What is Your Role as the Attorney?
Will you attend?
Ethical considerations
Dual Representation
What if you can’t attend?
Limited Representation
Fee Issues
What % of individuals have attorney representation at employment based AOS interviews?
Do you have a feeling or idea about those who are representing the employer vs. the amount that are individually seeking attorneys?

4. You Have Decided to Attend The Interview. Now What
You Have Decided to Attend The Interview. Now What? High Level Considerations
USCIS has indicated that the I-140 should not be readjudicated
The officer will likely ask questions to determine if the I-140 information was accurate and authentic
The level of questioning seems to vary based on the office and even the officer
What level of training has been provided related to employment based interviews?
What is done, if anything, to provide consistency within interviews?

5. Documentation Needed
The Interview Notice has been updated now to reflect items that are expected specifically for employment based interviews. Have all items listed.
Evidence regarding continued employment:
If same employment: employment verification letter and recent pay stubs
If new employment under portability: I-485J (if not yet submitted and approved), pay stubs for new employment, employment verification letter
Civil Surgeon Exam if no longer valid
Evidence of bona fide relationships for family members
What is the most common documentation that individuals fail to bring to the interview?
New Denial Guidelines – Will you RFE for missing items or would you deny?

6. Prepare the Foreign National on What to Expect
Advise to know all details of PERM (if applicable), I and I-485
Explain procedures at local office
Explain the role of everyone involved: attorney, foreign national, family members, and USCIS officer
Attorney Role – active listener, facilitate exchange of information, note taker, familiar with areas of concern
Foreign National – Asking for clarification and even saying he/she isn’t certain is OK
Describe scope of family member interview
How long are the interviews lasting on average?
How are cell phones, Ipads or other electronic devices allowed to be used?
When is it appropriate to call in a supervisor?

7. Types of Questions to Expect
Details regarding terms and conditions of employment:
Duties
Location
Wage
Requirements
Prior employment experience and how employee meets minimum requirements
Any changes in the position and/or description of new position (more to come on portability)
Ownership or familial relationship with employer
Do you have any best practices and/or preferences to share with attorneys and/or foreign nationals on the interview itself.

8. Additional Areas Likely to Be Questioned
Maintenance of status
Any I-485 questions
Confirmation of continued job offer and intent to take up employment
Criminal History
Bona fide relationship of dependents
Maintenance of status of dependents
Are there any areas of questioning we have left out?
Is there a focus on changed intent at all? For example, an individual entered as a student, J-1 or other temporary intent status and then later filed for AOS?

9. Additional Issues to Anticipate
Job Portability

10. Additional Issues to Anticipate
Any Maintenance of Status
Gaps in employment
Location(s) of employment
Student employment: STEM OPT/Third Party Placement
Criminal Issues
For maintenance of status, how far back are you looking and how detailed?

11. Post Interview Issues Retrogression following interview
When to reach out regarding lack of action
Requests for Evidence
Is there a point in the process where someone is assigned a “visa number”?  For example, if an individual interviews and it is determined that only one last piece of documentation is needed (i.e., civil surgeon exam update), would the person be assigned an immigrant visa spot? Or, is the immigrant visa not assigned until the application is fully approved?  This is more and more important as we are dealing with regression of visa numbers.
What is the average time for approval? What is the preferred method of outreach if the case remains pending with no action following the interview?
How is the new policy memorandum regarding denials impacting procedures for I-485Js? Meaning, will you still RFE on questions that come up during interview (civil surgeon exam update, question regarding maintenance of status, etc.)?

12. Questions

13. Resources
Practice Alert: Details on Employment-Based Interviews Emerge During CIS Ombudsman Stakeholder Call: AILA Doc
Practice Pointer: Preparing for Employment-Based Adjustment Interviews: AILA Doc
Bite-Sized Ethics: Limited Representation and Third-Party Fees in Employment-Based Adjustment Interviews: AILA Doc
USCIS Policy Memo on “Same or Similar Occupational Classification” for 204(j) Job Portability: AILA Doc