Visa Number Retrogression: "What Does It Mean to Me and My Family?"
Most of the die-hard visitors of this web site understand the meaning of visa retrogression and its impact on his/her immigration process. However, surprisingly this reporter learned during the past few days that there were a large number of people who had no clear-cut understanding of the meaning and were confused. The follwing Questions and Answers may be considered too basic to some of the visitors but may be helpful to those who do not have as much knowledge as they do. Here are some of the questions and answers on the impact of the employment-based visa retrogression to an individual:
Q1: 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.
Q2: 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.
Q3: 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.
Q4: 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.
Q5: 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.
Q6: 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!
Q7: 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.
Q8: 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.
Q9: 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.
Q10: 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.
Q11: 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.
Q12: 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.
Q13: 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.
Q14: 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.
Q15: My EB-3 I-485 is currently pending, but because of the visa retrogression, I may face a situation involving relocation of my company to a different state or I take a similar or same job with a different employer in a different state which is not within the jurisdiction of the NSC where my I-485 is pending. Will my case be transferred to a different Service Center where my new job site is located? A: Assuming that 180 days have passed since you filed I-485, you can take a new employment in similar or same occupational classification in "any state or location" in the U.S. The relocation of your current employer to a different state takes place, your approved labor certification was considered "no good" in old days inasmuch as there no longer existed the labor certified job in the old site. However, thanks to AC 21 180-day rule, your employer and you can argue that you can take a same job in the different state after 180 days no matter whether it is the same employer or a different employer. When employment is changed to a different state that falls under the jurisdiction of a different Service Center, the Service Center where your I-485 is pending will complete the proceedings rather than being transferred to the new site Service Center. This is a big difference between the family-based I-485 proceeding and employment-based I-485 proceedings. In the family-based I-485 proceedings, if you move from one local district to another district, the district office where you I-485 is pending transfers the I-485 cases to the local distirct of office that has jurisdiction over the new residence of the applicant. In the employment-based I-485 proceedings, it is the policy of the USCIS to let the original Service Center to complete the proceedings.
Q16: My I-140 is either approved or pending but because of the visa number retrogressgion, I will not be able to file I-485 for many years. What happens with my green card journey if the company relocates to a different state before I can file a I-485 and the company does not have any project or work for the labor certified job? A: The approved labor certification is "employer-specific" and "location-specific." Unless AC-21 180-rule is available, any changes in employer and location of the job site will make the certified labor certification application "no good anymore." Accordingly, until either AC-21 180-day rule becomes available, the petitioning employer has to prove the existence of the labor certified job at the "specific location" and if the employer employer fails to prove it, the USCIS should deny either I-140 petition or I-485 application or both. AC-21 180-rule is a savior in this regard, but the visa retrogression will deprive a large of you of the opportunity to survive when such changes happen in the future.
Q17: My I-485 was transferred to the local district for interview and I completed the interview in September 2005. The interviewing officer told me that the visa number was not available at the time but as soon as the visa number would become available in October 2005, the local district office would approve my case. What happens with my case on October 1, 2005? A: If your priority date is later than the cut-off date in the October Visa Bulletin, the local district office will not be able to approve your I-485 and wait until your visa number becomes available, no matter how long it will take!
Q18: My employer filed I-140 petition for me and I expect that I will not be able to file I-485 application for a long time. Pending all these, my employer promoted me to a higher-level position which is a different occupational classification in DOT. How will this promotion affect my green card proceedings? A: People often confuse between the current job (a temporary job) and the future job (permanent job). USCIS Bill Yates admitted in a memorandum that the alien did not even have to work for the employer pending the proceeding inasmuch as the employer proves the existence of the labor certified "permanent" job. Accordingly, theoretically, one may argue that your new promoted job is a temporary job and once the I-485 is approved, you will be reassigned to your previous job. However, this sounds awkard that you will be demoted to lower-level position of lower-wage after so many years because of the approval of your green card. In this situation, the employer will have a difficult time to establish "existence of the labor certified permanent job."
Q19: My case was transferred to the local district office and I was interviewed by the officer on September 15, 2005. The officer said my case was approved pending the security clearance report from the security agencies. I am an Indian and my visa number will be retrogressed in October. Am I O.K? A: Probably not. The adjudicators do not take out the visa numbers at the interview when the security has been cleared, because if they do, they will have to start revocation proceeding once a negative security report is received later. What the officer said was that your case was approvable but for the security clearance. If the security clearance is not received by the officer before October 1, 2005, your case is likely to be shelved for visa numbers in the future. This question is repeated by the people over and over. Please remember that unless I-485 is actually approved before October 1, 2005, people will be subject to the retrogression and will not be able to obtain approval until the visa number becomes available for them again in the future!!!
Q20: My I-485 (EB-3) application is pending, but because of the retrogression, I-485 will not be approved for several years. I have already changed employer after 180 days of I-485 filing, but because of the anticipated long wait for the visa number, I may have to change employment again. My new job is not stable. Am I protected by AC 21? A: Yes, if you ported I-140 petition without flaws after 180 day of I-485 filing, change of employer will not affect your pending I-485, provided that the new job is same or similar occupational classification.
Q21: I filed I-485, and after 180 days, I changed employment and former employer is not happy. When should I file AC-21 change of employer notice to the Service Center? I am an Indian. A: Because of a huge retroression in EB-3, chances are that people may have to change employment in a lot of situation. AC-21 Act does not itself specify when such notice should be provided to the USCIS. The USCIS has encouraged proactive filing of such notice, but Yates memorandum does not penalize the aliens who fail to file such notice proactively. Consequently, it has been a common practice that people waited to receive a RFE to give such notice. Generally, when I-485 waiting time was short, this practice worked without any problem. However, when the waiting time can last years rather than months because of the visa number retrogression, failure to file such notice may present a number of practical problem, particularly in hostile employment separation situation. Firstly, since the USCIS sends all the communications to the legal representative of your employer, you are completely left in the dark, presenting a number of problems. The USCIS could have served RFE or NOID (Notice of Intent to Deny) or any other notices upon the company's legal representative. Because of the potential conflict of interest, the legal counsel may be reluctant to communicate with you, putting you in a vulnerable situation in the legal proceeding. Additionally, you never know what kind of action your former employer has taken against you as your employer was not happy with your departure from the employment. Secondly, from the perspectives of the USCIS, unless such AC-21 notice is given, their record will just reflect that your are still working with the employer. Accordingly, once the USCIS receives a request for revocation of the I-140 petition, they may either deny your I-485 or service the NOID on you. That will scare you to death. Thirdly, the former employer could withdraw the I-140 petition to file another I-140 for another employee for substitution of the alien beneficiary of the labor certification application. Assuming that the substituting employee is a non-Indian or non-Chinese, whose visa number waiting will be shorter than the Indians or Chinese, that employee's I-485 could be approved ahead of yours. At this time, there is unsettled legal issue of consequences of such I-485 employee's green card approval on your pending I-485. Since one certified labor certification application cannot produce two employment-based green cards, there will be a potential problem, especially when the USCIS is not aware that you have used AC-21 benefit of change of employment. For all of the foregoing reasons, you may consider filing a notice of AC-21 change of employment proactively. The situation may be completely different if you were separated from the employment amicably and peacefully with the employer. In the latter case, you can still wait to receive RFE rather than proactively filing such change of employment notice, even though there may be some problem of preserving the evidence of AC-21 eligible change of employment for a prolonged period of time even in the latter situation.
Q22: My Indian hu*****and and I filed EB-3 I-485 applications. Sadly, we are not getting along well and physically separated. Since I-485 is going to take so long time, I will have to decide when this marriage should end. I want to know the different consequences of legal separation vs divorce on my pending I-485 application. I am currently working using EAD and Advance Parole. A. Sorry that your marriage is falling apart. Under the immigration law, the government cannot deny I-485 solely on the basis of "viability" of the marriage. Physical or legal separation creates the viability of the marriage. Accordingly, if your I-485 is approved after years of waiting, your green card will be considered valid and legitimate. On the other hand, if you get divorce, you will no longer be eligible for I-485 and face one of the two consequences. If the agency learns that you are divorced, they will deny your application. If the agency approves your I-485 without the knowledge of your divorce, your green card will remain revocable and the agency can bring a revocation proceeding to cancel your card if they learn that at the time they approved your green card, you were divorced from the primary beneficiary of the I-140 petition.
Q23: My employer filed and obtained approval of a labor certification application application. It has been more than 365 days since the labor certification was first filed. Now I left the company and no longer work for the company. I have just learned that the company filed a I-140 petition for another employee using this labor certification substituting the beneficiary. Can I still retain the priority date? A: The immigration rule requires that if the I-140 was approved for you, the employer must withdraw and revoke your I-140 to file a new I-140 for the substituting employee. Thus under the rule of retention of priority date, you lose the priority date and the substituting employee picks up your priority date. If the certified labor certification is substituted before I-140 is filed and approved for you, under the priority retention rule, again you do not retain your priority date even if you obtained the labor certification approval. The substituting new employee picks up the priority date.
Q24: My hu*****and is a registered nurse. We filed Schedule A green card applications. The cases were transferred to the local district offices. At the end of the interview, my hu*****and's I-485 was approved but mine was not approved because the security clearance was yet to be completed. Will my I-485 be affected by the visa retrogression on October 1, 2005? A: Your hu*****and apparently used the one of the recaptured visa numbers for the Schedule A nurses and physical therapists. In October, the visa number will remain "current" and inasmuch as you get the clearance completed soon, it sounds you will be O.K. Remember, though, that because of EB-3 visa number retrogression, it is likely that the 50,000 recaptured numbers can run out fairly quickly. Should that happen, you will have to wait until the visa number will become available even if the local distict office receives security clearance report.
Q25: My I-485 has been pending and I have been working on H-1B which has been granted beyond 6 year-limit under AC 21 Act. I know that I will be able to extend my H-1B "indefinitely" until visa number is available and my I-485 application is adjudicated. What happens with my H-1B status if my I-485 is denied? Will my H-1B status be automatically terminated at the time of I-485 denial, assuming the decision is not appealed? A: If 485 applicant maintains H-1B visa status during the H-1B six-year limit, denial of I-485 will not affect his/her H-1B status and he/she will be able complete the H-1B period and even extend the H-1B status within 6 year limit. However, when he/she works in H-1B status beyond 6 year under AC 21, the extension is contingent upon pending I-485 application. Thus once I-485 is denied, his/her H-1B status will also cease under the AC 21 law.
Q26: I filed concurrent I-140/I-485 and changed employment after 180 days, but at the time, I-140 petition was still pending. Since neither the former employer nor the company lawyer is willing to discuss about the status of my case and I have no information about my I-140 and I-485 including case numbers, I am scared to death. Otherwise, the change of employment complied with the AC 21 and the new job is same or similar occupation. Considering the long waiting time under the retrogression, I want to know what the options are. A: As we discussed earlier, your question is related to the issue of when the AC-21 porting should be reported to the USCIS. The retrogression of the visa numbers affected the whole dynamics of this issue. When I-140 was not approved at the time of porting, this issue becomes a really challenging issue because of the USCIS policy that if, without your knowledge, the RFE was issued, and your former employer either fariled to timely repond or responded but indequately or just responded that you were no longer working for the employer, the USCIS is required to deny the pending I-140 on the merits and deny your I-485. Since I-140 decision is delivered only to the company and the company lawyer, there is no way you can it out. However, since the USCIS would have denied your I-485 application simultaneously with the denial of the I-140 petition in this case, unless you have received a denial notice of I-485, the chance is that your case may be still pending unless you moved and the USCIS could not serve such notice. One risk when people like you is faced by changing employment before I-140 petition was approved is the potential denial of the pending I-140 petition by lack of cooperation or hostile reaction of the former employer or other eligibility issue related to the "employer qualification" such as financial ability to pay. Once the I-140 is denied, your I-485 will also be denied even if you changed employment after 180 days of I-485 filing. Strategically, it is better off that people who are in similar situation with yours promptly file a notice of substitution of legal representative and file "proactively" AC-21 porting and change of employer. If a RFE has not been issued, the USCIS has been instructed to approve I-140 petition assuming that the petiion is approvable or would have been approved had they adjudicated within 180 days of concurrent filing but for such issue as financial ability to pay or other issues related to a time after the filing of the I-140 petition. Accordingly, one will face less a chance to be issued a RFE to the former employer. Additionally, such filing will at least allow your new legal representative and yourself to keep up with the pending I-485 application. The I-140 petition decision will still not come to your new lega representative unless the former employer agrees to such substitution of the legal counsel, but you have a better chance to survice. This is a big difference in 180-day porting before and after the I-140 petition approval.
Q27: I filed concurrent 140/485 and changed employer, but employer has withdrawn the I-140 petition to take away my chance of getting green card. What happens with my I-485? A: You did not tell me when the I-140 was withdrawn. If it was withdrawn before your I-485 had reached 180 days, your I-140 petition is gone and your I-485 application will be denied. However, if the employer withdrew the I-140 petition after 180 days of your I-485 filing, it will have no affect on your I-485 application inasmuch as you changed employer for a job which is similar or same occupational classification.