Q: The employment-based I-485 application has been approved for me but my wife's and children's applications are still pending because of documentation or other issues. What will happen to them on October 1, 2005? A: The priority date for family members (spouse and children) is determined by and same with the principal alien's. If the October Visa Bulletin shows their priority date is later than the cut-off, the USCIS or the American Consular officers cannot approve their pending I-485 until the first date of the month when their priority date is available in the monthly visa bulletin.
Q: I received the I-485 approval notice in the mail on September 30, 2005. How will my green card be affected on October 1, 2005? A: When the USCIS adjudicates the I-485 applications at the final stage, they first check with visa numbers with the U.S. Department of State either via phone or computer before they approve the applications. Accordingly, once people receive an approval notice, they already took out the visa number and are safe.
Q: I have already filed I-485 application but my spouse is outside of the U.S. and has yet to arrive and is scheduled to arrive here on September 30, 2005. Can my spouse submit his/her I-485 after he/she arrives? A: No. At the time I-485 is received by the Service Centers, a visa number must be available. Since the chances are that his/her I-485 application may not be delivered to the Service Centers before the end of the date of September 30, 2005, he/she will not be able to file the application and must wait until the visa number becomes available again in the future. Q: Can the family members stay and wait in the U.S. after their status expired while they wait for the visa number? A: No, unless they have a valid status of their own, they are not allowed to remain in the U.S.
Q: The principal alien filed a labor certification or petition before April 30, 2001 and after a long delay in the labor certification process and immigration service I-140 and I-485 applications processing, my I-485 has been approved. My spouse and children will arrive here on September 30, 2005 on a dependent visa status. Once they arrive here, they will have to stay with me even after their status expires while they wait for the visa numbers. What will happen? A: Since the labor certification application or petition was filed by you, the principal alien before April 30, 2001, you and your family members are protected and grandfathered by Section 245(i). Unlike the principal alien, the family members are not subject to the physical presence requirement on December 20, 2000 for the benefit of 245(i) relief, and when the visa number becomes available, they will be able to submit their I-485 applications together with I-485A with the payment of $1,000 fine for each family members who are older than 14 years of age. This does not mean that they are not illegal aliens and they cannot be arrested and deported once they are detected. Accordingly, to get the 245(i) benefits, such family members should remain underground and not be detected by the law enforcement agencies or immigration officials. Caveat: Risk Involved: If they are arrested or voluntarily depart from the U.S. after unlawfully staying in the U.S. for 6 months or longer, depending on the period of overstay or unlawful stay, they will not be able to return to the U.S. either for 3 years or 10 years. Considering such huge risk, it may be better off that such family members return to home country before reaching 6 months of unlawful stay and wait in the home country.
Q: My labor certification has just been approved and I received the approved labor certification on September 29, 2005. Can I file my green card application? A: Yes or No. If you have prepared all the papers for filing of I-140/I-485 for you and your family members before the deadline of the commercial overnight delivery services drop-off or pick-up time, you can file it. Usually commercial drop box deadline is 5:00 p.m. or 6:30 p.m. depending on the location of the drop boxes. If you miss the drop box deadline, then you can run to the local main station or international airport station of the Fedex or UPS or DHL and timely ship out even after the drop box deadline in the city or town. Remember that unless it is physically delivered to the Service Centers within September 30, 2005, Friday, your case will be rejected and you will suffer many years of delay to file your green card application.
Q: My I-485 has been transferred to the local district office for interview and received a notice of interview date of October 3, 2005, Monday. Since they sent out notice before October 1, 2005, will I be O.K? A: No, and you will not be O.K. Even though chances are not too good, but, you or your legal representative can work on advancing the interview schedules before October 1. Some attorneys are working with other colleague attorneys who have an interview schedule for their clients before October 1, 2005 to switch the interview schedules with the consent of the local district office. Worth trying!
Q: I-485 applications for my family and myself have been approved but we are still in India or China. Since the visa number will not be available from October 1, 2005, what happens if we return after October 1, 2005? A: When you return, you will not be admitted as any nonimmigrant (for instance, H-1B) nor advance parole. At the same time, you are still not considered a permanent resident until you are admitted to the U.S. as a lawful permanent resident. In normal circumstances, the immigration inspectors at the airport will allow you to come into the country on a "deferred inspection" or "parole" status just to allow you to appear at the local district office to complete the green card process. When the Service Center approved your application, they took out the visa number for you but the adjudication may not be completed in some situation until you return and complete the admission process at the local district office. It is thus critically important that you return to the U.S. before October 1, 2005 not to take any chances. The same is true with those who have been issued an immigrant visa before October 1, 2005. They should enter the U.S. before October 1, 2005.
Q: I am in H-1B and filed a labor certification application about 365 days ago. Since the labor certification has yet to be approved, I cannot file my green card application for long time. I am approaching my six-year limit of H-1B. Can I extend the H-1B beyond six years even if the labor certification has not been approved and no petition or application is pending with the USCIS? A: Yes, you can extend your H-1B "indefiniely" in one-year increment until your green card is finally approved or denied.
Q: When visa number will not be available for many years to come and I will not be able to obtain green so many years, why do I have to rush to file I-140/I-485 before September 30, 2005? A: A number of benefits are attached to the "pending" I-485. First, until I-485 is approved, even during the period of visa number unavailability, you can obtain and extend the EAD and Advance Parole indefinitely. Second, pending I-485, you are considered "lawfully present" in the United States without any nonimmigrant visa status. Third, after 180 days of filing I-485, even during the period of visa number unavailability, you can change employment to a same similar occupational classification. According to the recently released USCIS Bill Yates Memorandum, you can even change employment after passing 180 days even if the I-140 is yet to be approved "inasmuch as the USCIS determines that the original I-140 petition was eligible and approvable." Fourth, when you changed employment under the foregoing conditions, even if the employer of the original I-140 petition withdraws and revokes the petition, you can continue I-485 without being affected by the revocation of the petition. Fifth, if you woked illegally or overstayed less than 180 days and file I-485, all these violations will be forgiven under Section 245(k) of the immigration law. Once you pass the 180-day window, you will not be eligible for filing I-485 even if the visa number becomes available in the future. Sixth, once your I-485 application is in the pipeline, the USCIS will keep processing your application even during the period of visa number unavailability, such as fingerprinting, namechecks, security clearance, etc., and when your case approaches the visa number date, your case will be ready for approval by the agency. When you will have to wait and file I-485 after visa number becomes available, processing of your I-485 will be very, very delayed because nothing has been done with your case by the USCIS. There will be miles of difference when it comes to processing time of I-485 application between those who filed I-485 before the retrogression but have to wait for the visa number and those who have not filed I-485 and wait for the visa number. Seventh, your spouse and children can obtain EAD and advance parole and do not have to maintain any "nonimmigrant visa" status, if they filed I-485 with you before the visa number retrogressed. There are many additional benefits which only the I-485 filers can enjoy and non-I-485 filers cannot enjoy.
Q: My labor certification has been approved but I have yet to receive the hard-copy approval notice. Can I file I-140/I-485 concurrently just with the secondary evidence of the labor certification approval? A: There are two difference issues which you will have to review to determine whether such filing will stick. Issue one is whether your filing will be considered "filed" and "receipted" or can be "rejected." Issue two is whether your filing is considered "filed" or "receipted," whether your I-140 petition and accompaning I-485 can be denied without giving you a chance, in the form of RFE, to provide the hard-copy approved labor certification application later. The answer to the first question appears to be positive under the Section 103.2(a), under which the Service Centers may not reject such filing. The answer to second issue is not too clear, even if one can argue that under the Section 103.2(a)(8), the Service Centers should not deny the I-140 petition without first serving request for "initial evidence." Under this provision, the Service can deny the petition without RFE if there is "evidence of ineligibility" in the record. In the instances where there is no evidence of ineligibility and initial evidence is missing, the Service is required to collect the missing evidence by servicing RFE rather than denying the petition outright. The importance of this rule is supported by the USCIS Bill Yates Memorandum of February 16, 2005. This memorandum gave illustrations of "ineligibility" which are remote from the current situation. However, the adjudicators do not necessarily interprete the rules the same way their highter-ups in Washington, D.C. does, and they can still deny outrightly I-140/I-485 applications after accepting the filing. Should this happen, you lose all the expensive filing fees and other costs including medical, attorney fees, etc. However, unlike the situation where you totally fail to submit any evidence of the labor certification application, the agency may not deny your petition/application inasmuch as you submit the secondary evidence of the labor certification application such as either screen shot or website approval notice printouts, even though it is not guaranteed. All in all, the answer to this question will remain a decision of taking a gamble. So far, there is no hard and fast rule on this issue.
Q: I am an Indian and my EB-2 I-485 is currently pending. Since EB-2 for India will retrogress several years, I do not want to wait that long. My spouse was born in the United Kingdom. Can I use cross chargeability and ask the agency to keep processing my I-485 application in October 2005 and on? A: Absolutely yes. You will have to make it sure that you meet the cross chargeability conditions, though.
Q: Both my wife and I filed labor certification application. I filed a fast-track College faculty special handling labor certification application (EB-2) and based on quick certificaiton of the labor certification, we filed I-140/I-485 concurrently. My wife started very early a regular labor certification with an early priority date and, after the painful years of delay, has obtained the labor certification application approval and I-140 petition has also beeen approved later. Can we switch to her case without expensive refiling of I-485 applications? Visa number is available for her now. A: Under the USCIS, you and your wife can switch to her case "if" your I-140 has also been approved. If your I-140 has been approved, you should request the Service Center in writing to substitute the underlying I-140 petition of your wife for the pending I-485 applications for you and your wife. The Service will continue the processing switing primary beneficiary from you to your wife and taking you as a derivative beneficiary instead of primary beneficiary.
Q: My concurrent I-140 and I-485 are pending and I-140 has yet to be adjudicated. Would visa retrogression delay the processing of I-140 petitions? A: Probably not for a number of reasons. But most importantly, the USCIS is currently under the pressure of reducing processing times of all the petitions and applications to 6 months.
Q: I filed EB-2 RIR on March 5, 2005 which is pending. My girl friend started labor certification early in 1999 and filed EB-2 I-140/I-485. Her green card may be approved in the near future. We are planning to marry soon. How our lives will change in the context of retrogression? A: Once you marry her before her I-485 is approved and you file your own I-485 before her I-485 application, you will be able to file "accompanying beneficiary" I-485. If you marry her before her I-485 is approved but your I-485 was not filed until her I-485 is approved, you can still file your I-485 as a "following-to-join" alien derivative beneficiary. In both of these cases, your priority date will be your wife's priority date which is 1999 under EB-2 category. If her I-485 application is already approved by the time you two marry, all the immigration benefit she will be able to give you is the Family-Based 2nd Preference Petition which is heavily backlogged. Assuming you marry her before her I-485 is approved and you file I-485 based on her EB-485 application, you may still want to keep your labor certification application alive as a back-up in the event that her I-485 is denied for whatever reasons. If her I-485 is denied, your I-485 will also be denied.