I have a question regarding the priority dates. I would like to know after my I-140 is approved and the priority date is still retrogressed can I keep extending my I-140 till the dates are current?
A1
An I-140, once approved, is not hurt by waiting. As long as the job is still available, your approved I-140 remains valid indefinitely.
1. We have our I-140 approved around September 2003, although we originally filed our I-140 on August 15th of 2002 and I-485 in December 2002, and are having EAD and Parole already. What is the effect of this new Visa Numbers Retrogress in our case.
2. Even though we have not filed our I-140 and I-485 parallel, because at that time filing parallel law was not in place, Would our case still be considered as
parallel filing.
A2
1. So far it seems that EB3 cases with priority dates later than the date shown on Visa Bulletin would be kept pending. EAD's will be issued and continue to be issued. But no green cards will be issued.
As I understand that priority dates under EB3 category has been retrogressed. My labor approval has arrived through my employer. I cannot file I-485 in EB3 due to retrogression since I am from India. Even though my wife is Indian, her place of birth is Kenya. She is the secondary applicant for I-140 & I-485. Can we apply under Kenya quota since retrogression has not affected Kenya.
A4
Yes. You can apply under Kenya quota. This is referred to as
cross-changeability.
Now that PERM is in place , the fact that the I-485 applications should
wait till the retrogation date (Priority dates ) are current is still
valid or once we get the labor approved through PERM can we apply for I-485
Immediately.
A6
Retrogression (see: http://www.immigration.com/faq/prioretro.html) and PERM
are two totally different issues. Even if you get a labor cert, you cannot
file I-485 (you can file I-140) until your priority date becomes current.
I do know that if my spouse is born in other country other than China, India or Phill. As per cross-changeability, the EB3 retrogression will not be affected.
Now my question is if my son is a US citizen ( 4 year Old) , Can I use this cross changeability for EB3 retrogression for filling I-485?
A spouse can take advantage of the other spouse's country of birth if priority date retrogression occurs or backlog exists. As an example, a husband is born in India. His labor cert is approved, but he is unable to file an I-485 because his priority date is not current. If his wife was born in Singapore (or any other country whose employment-based priority dates are not backed up), he can file 485 right away under Singapore quota of green cards.
1. My priority date is 10/31/2003. Concurrently filed I-140, I-485, AP, EAD on July 2004 to TSC. AP and EAD got approved on August 2004. I-140 and I-485 are pending. Will they still going to process my I-140 before my priority date becomes current?
2. Can I renew my AP and EAD?
3. How bad is the retrogression impact on my case?
I have applied for my I-140 and I485 with concurrent filing in Sept'2004.I received my EAD too. At that time my wife was in India and joined me in November'2004. Can I apply my wife's I-485 application now? Or I need to wait till my Priority date becomes current because of Retrogression.
A10
As far as I know, you have to wait till the dates become current.
I am a licensed physical therapist and am currently working. I heard
about the retrogression in the priority dates for people born in India. How is this going to affect me if I start my green card process now?
I read this memo on Extension of H-1 Beyond Six Years During Priority Dates Retrogression. If a person affected by visa retrogression can extend H-1B with a pending I-140 (based on LC filed less than 365 days ago). In your memo you only stated cases where I-140 is approved.
A12
Under AC21 Section 104 - no, I do not think so, unless CIS decides differently. But under Section 106, yes, if labor cert as filed more than one year ago.
A typical labor cert proceeds along the following lines. Let me take some hypothetical dates to make it clearer.
LABOR CERTIFICATION BASED CASES (FOR CASES WHERE A LABOR CERTIFICATION IS NOT REQUIRED (e.g., EB-1, National interest Waiver, or Schedule A cases), the priority date is the date the I-140 s received by CIS.)
1. 1 January 2005
Electronically filed labor certification with the US Department of Labor ("DOL").
2. 05 February 2005
DOL certifies (approves) the application.
3. March 2007
I-140 is approved by USCIS
When can we file the last step, Adjustment of Status (Form I-485) or consular processing?
A14
The answer is we can file the Form I-485 or CP ONLY when a permanent visa ("immigrant visa") is available for you.
The permanent visa availability is announced by the US State Department every month in a publication called "Visa Bulletin." Click here to see the Visa Bulletin It lists the categories by countries of birth and then states which "priority dates" will now be processed. The critical point to remember is that your priority date would be the date the application is first filed with DOL. Thus the priority date is 1 January 2005 in the case we have described above.
If a visa category is too backed up, it does not matter how quickly you get a labor certification. You may still end up waiting a long time to file your last step, Form I-485.
We would still advise trying for the fastest labor cert. There is always a chance the dates may move quicker (...or slower) than anticipated. In any case, if you have the labor cert approved, you have peace of mind.
I have a question regarding the priority dates. I would like to know after my I-140 is approved and the priority date is still retrogressed can I keep extending my I-140 till the dates are current?
A17
An I-140, once approved, is not hurt by waiting. As long as the job is still available, your approved I-140 remains valid indefinitely.
We have our I-140 approved around September 2003, although we originally filed our I-140 on August 15th of 2002 and I-485 in December 2002, and are having EAD and Parole already. What is the effect of this new Visa Numbers Retrogress in our case.Even though we have not filed our I-140 and I-485 parallel, because at that time filing parallel law was not in place, Would our case still be considered as parallel filing.
A18
So far it seems that cases with priority dates later than the date shown on Visa Bulletin would be kept pending. EAD's will be issued and continue to be issued. But no green cards will be issued. The case will be considered concurrently filed.
As I understand that priority dates under EB3 category has been retrogressed. My labor approval has arrived through my employer. I cannot file I-485 in EB3 due to retrogression since I am from India. Even though my wife is Indian, her place of birth is Kenya. She is the secondary applicant for I-140 & I-485. Can we apply under Kenya quota since retrogression has not affected Kenya.
A20
You can apply under Kenya quota. This is referred to as cross-changeability.
Now that PERM is in place , the fact that the I-485 applications should wait till the retrogression date (Priority dates ) are current is still valid or once we get the labor approved through PERM can we apply for I-485 Immediately.
A22
Retrogression (see: http://www.immigration.com/faq/prioretro.html) and PERM are two totally different matters. Even if you get a labor cert, you cannot file I-485 (you can file I-140) until your priority date becomes current.
I do know that if my spouse is born in other country other than China, India or Phill. As per cross-changeability, the EB3 retrogression will not be affected. Now my question is if my son is a US citizen ( 4 year Old) , Can I use this cross changeability for EB3 retrogression for filling I-485?
1. My priority date is 10/31/2003. I concurrently filed I-140, I-485, AP, EAD on July 2004 to TSC. AP and EAD got approved on August 2004. I-140 and I-485 are pending. Are they still going to process my I-140 before my priority date becomes current?
2. Can I renew my AP and EAD?
3. How bad is the retrogression impact on my case?
I have applied for my I-140 and I485 with concurrent filing in Sept'2004.I received my EAD too. At that time my wife was in India and joined me in November'2004. Can I apply my wife's I-485 application now? Or I need to wait till my Priority date becomes current because of Retrogression.
A25
As far as I know, you have to wait till the dates become current.
I am a licensed physical therapist and am currently working. I heard about the retrogression in the priority dates for people born in India. How is this going to affect me if I start my green card process now?
A26
Your priority date is the date we file the I-140. We will not be able to file I-485 until your priority date is current. See the Current Visa Bulletin.
1. There are news that EB2 cases for GC have gone into retrogression and that to 99 and EB3 98(For India). How far is this true?
2. If so, any action of protest from your law firm?
A27
1. That is true.
2. Nothing we can do, unfortunately. The visa numbers area matter of law. Unless Congress changes the law, we are all stuck with the numbers. We are trying to get a large group of people together to start a lobbying effort and see if Congress will help. The chances of Congressional help and intervention are very small, but we must try.
Can you explain how retrogression relates to extensions beyond 6 years for H-1?
A28
Yes. H-1 extensions beyond 6 years are available under two circumstances:
First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:
- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
- for PERM cases - the date it is received by the DOL; and
-EB-1 and National Interest Waiver cases; when the I-140 is officially filed with CIS.
Second, if your I-140 has been approved but you cannot file I-485 because your priority date has retrogressed, you can get H-1 extensions (most probably) in chunks of three years each time.
1. Can you please explain if priority dates can be transferred?
2. What If I-140 Is Denied?
A29
1. Sure. Here is the law:
CHANGING EMPLOYER BEFORE I-140 APPROVAL
If a person changes employers before obtaining I-140 approval, they can carry NOTHING forward to the next employer. They have to start their labor certification all over again with the new employer. There are some very limited exceptions to this rule (for example, in general, a change in employers requires a new application for certification by the new employer unless the same job opportunity and the same area of intended employment are preserved. International Contractors, Inc., and Technical Programming Services, Inc., 89-INA-278 (June 13, 1990). A change in employers does not necessitate a reapplication for certification where the alien is working in the exact same position, performing the same duties, and in the same area of intended employment for the same salary or wage). Neverthless, you can discuss your case specifically with your own lawyers. If you wish to get a second opinion from us, we expect a paid consultation.
2. That situation is legally the same as changing employers before I-140 employer.
CHANGING EMPLOYER AFTER I-140 APPROVAL
If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her. Under very limited circumstances (such as fraud) INS may revoke the I-140 thus causing a loss of priority date.
If such a person changes employers, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.
We recommend that an applicant keep at least a copy of the I-140 approval notice.
1. So this affects pretty much everyone from the world.
2. On a personal basis, I am from Pakistan. Eb3 PERM about to apply. So it looks like March of 2001 is what they are processing. Does this mean that I will have to wait 4 years to apply for 485.
3. I have also heard there a new bill that will eliminate this backlog, thus making it easier for us. i believe this fall or early next year is when it suppose to implement.
A30
1. For EB-3 category at the moment - yes.
2. You will have to wait till the priority date becomes current, however much time that takes.
3. There is no such bill for retrogression relief as far as I know.
140 is approved, 485 filed more then 6 months ago, completing 6 years on H1, maintaining both AP/EAD and H1 as backup.
I know I can file 7th year extension with the current employer.
Question is can I file 7th year extension with new employer when I change employer and transfer H1 to new Employer before 6 years are over.
(I Will continue to renew EAD/AP every year ).
I got my EB2 LC approval 15 days ago. I am eligible to file I140 and 485 concurrently. My question is: Is my eligibility date reserved?
I need to travel to Canada between Sept 28 and Oct 5 (on my valid H1) and would like to hold off filing for AOS until I return. Will I still be able to file concurrently come October even though EB2 has regressed to 1999?
A32
No. Unless your papers are received by CIS before 1 October (when the retrogressions starts), you will not be able to file I-485. You CAN file I-140.
If I-140 is approved, 485 pending, still 3 yrs H1-B extension possible?
A33
Yes, if you have three years left fro original 6 years. If your 6 years are over and your 485 is filed, you can get only year to year extensions of H-1.
If I had my I-140 approved from a company, then got laid-off,
8 months left on my H1-B (say 7th year extension). If another
company wants to hire me, how can they do it? By then, I would have
only about 8 months left on my H1, can they get 8th year extension
based on the fact that my I-140 was already approved? (Assuming the
new position is same in position, salary etc as the older position).
A34
Under the current law, mere approval of 140 does not
procure the right the right to extend. The priority date
becomes yours to keep for any future green card efforts, but that is it.
I was writing in reference to the latest announcement for the I-140 and I-485 filings. I had a few questions and I would appreciate if you could provide some feedback:
1. Can I still file for the I-140? ( without premium processing)
2. Can I still send in the premium processing forms and fees to your office in case they lift the restrictions?
3.How soon will I be able to file I-485 - October 2007 ?
2. As of July 2 through October 2007, are EB1 available?
3. As of July 2 through October 2007, can people from countries that are not backed up file their 485?
4. As you stated earlier, and as per USCIS memo, they forms that are received today will all be returned/rejected. If they are rejected, will it affect future 485 applications negatively in any way?
A37
1. Here is a legal answer as I see it. I hope I am proven wrong. I will elaborate further in our conference call. In my view, the lawsuit has a slim chance of succeess, but not in DC circuit. Our circuit is not likely to interfere with the exec easily. The strongest point is that govt. is changing a long standing practice, which requires rule-making under APA. The govt. will, of course, argue that they have issued amendments in the past and that this practice does not affect substantive rights. That would probably fly in the face of AC21 portability benefit which is, no doubt a substantive right.
Mootness is not a problem usually, because in a putative class action, we can always add more plaintiffs. Also, there are exceptions to mootness that could see a suit through.
I have not looked at the issues in great detail. Nevertheless, I think, the biggest problem is, if we dont get a hearing and an order within the month of July, the Court may have to dismiss the suit for inabaility to order relief (against the statute). This situation has occurred many, many times in the context of DV lottery cases.
PS We are highly unlikely to recover damages.
1.Since my wife was on F1 at the time of 485 filing, and is moving from F1 to 485-based EAD, if our 485 application is denied for some reason, she has to leave the US immediately. Is that right?
2. Her only option then is to apply for a H-4 visa (on my H-1)in home country (India) to reenter the US. Correct?
3.Could there be any complications in doing (2)? I read somewhere that she could be considered retroactively out-of-status from the time she started using EAD to when 485 is denied, and this could cause issues.
4.Is my wife's situation any different than someone who is on a H4 who switches to using 485-based EAD? Or does someone on a H4-485EAD have more options if 485 is denied?
5.Are there any better options my wife has to protect against485 denials?
A38
1. Yes, she does.
2. Correct, but she can first try for the visa in Canada or Mexico. It would be advisable to get the visa for these countries while she is still in authorized stay. Once she is out of status, it is my understanding, getting visas for these countries is also not possible.
3. There are no issues other than having to leave and come back with a visa.
4. Pretty much same situation.
5.If she could go on H-1, that would be a little better. But this situation does not worry me as long as you have access to H-1 status.
CIS Reg b8 CFR 245.1
(g) Availability of immigrant visas under section 245 and priority dates--
(1) Availability of immigrant visas under section 245. An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 is the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
DOS Reg 22 CFR §42.51:
§ 42.51 Department control of numerical limitations.
(a) Centralized control. Centralized control of the numerical limitations on immigration specified in INA 201, 202, and 203 is established in the Department. The Department shall limit the number of immigrant visas that may be issued and the number of adjustments of status that may be granted to aliens subject to these numerical limitations to a number:
(1) Not to exceed 27 percent of the world-wide total made available under INA 203(a), (b) and (c) in any of the first three quarters of any fiscal year; and
(2) Not to exceed, in any month of a fiscal year, 10% of the world-wide total made available under INA 203(a), (b) and (c) plus any balance remaining from authorizations for preceding months in the same fiscal year.
As per my rough math, the picture in 2007 looks like this:
Total Visas Available from Oct 1 through Sept 30: 140,000
DOS can issue no more than 14,000 per month and no more than 40,600 per quarter for the first three quarters (thereafter they can issue more per quarter but 10% limit per month still holds).
As of June, 68,000 had been issued.
That leaves 72,000 still to be issued.
