11/04/2005: I-485 Filing During Visa Retrogression Under S.1932 - Who Is Covered?
One of the huge benefits which the just passed Senate Reconciliation bill, S. 2932, will offer to the immigrants is to allow filing of I-485 application for certain EB petition beneficiaries and their family members, even during the period of visa retrogression, upon payment of $500 fees. It is thus important that people understand who are covered by this provision.
The following I-140 petition beneficiaries will be able to file I-485 applications regardless of the visa number availability:
Those whose employer filed I-140 petition for him or her, but who could not file I-485 applications because of the visa number retrogression. This group includes two sub-groups: Group A: Those whose I-140 petition has already been approved at any time. Group B: Those whose I-140 petition has been filed and pending at the tme of enactment of this legislation. It appears that those whose I-140 petition is not pending at the time of enactment of this legislation, one may still be able to file concurrent I-140 and I-485 application during the period of visa retrogression inasmuch as the USCIS revises the current concurrent filing regulation. Otherwise, these group of people have to wait until their I-140 petition is approved before they can file I-485 applications.
Those who are eligible for I-485 applications under this new legislation will be able to obtain EAD and Advance Parole pending their I-485 applications. Of course, their I-485 application will not be approved until the visa number becomes available.
EB classifications which are covered by this legislation are as follows:
EB-1A (Extraordinary Worker)
EB-1B (Outstanding Researcher)
EB-1C (Multinational Corporate Executives and Managers
EB-2 (Advanced Degree or Exceptional Ability Workers including NIW)
EB-3 (Professional or Skilled Worker)
EB-3EW (Unskilled Worker)
EB-3EX (Schedule A Worker)
EB-4 (I-360 Religious Workers) and EB-5 (Investor Immigrant) workers are not covered.
The accompanying or following to join spouses and children are also covered.
Once they file I-485 applications, they will also receive the AC-21 portability benefits and will be able to change employment after 180 days of I-485 filing.
Because of the foregoing benefits, even if the Immigration Reform legislation fails to increase the EB quota numbers substantially large enough to cover the current visa number waiters and forth-coming I-485 filers, they will be able to at least lead a normal life using EAD and Advance parole.
For the foregoing reasons, the immigrant community should work hard in collaboration with their employers to get the Reconciliation bill enacted into law!!!!
The full text of this part of the legislative bill is as follows:
`(2) If a supplemental petition fee is paid for any petition under subparagraph (E) or (F) of section 204(a)(1), an application under paragraph (1) of this subsection on behalf of an alien beneficiary of such petition (including a spouse or child who is accompanying or following to join the principal beneficiary) may be filed without regard to the limitation set forth in paragraph (1)(C). An application for adjustment of status filed under this paragraph may not be approved until such time as an immigrant visa becomes available.'.
(2) PENDING APPLICATIONS- An alien on whose behalf a petition was pending under subparagraph (E) or (F) of section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)), on the date of enactment of this Act may, upon the payment of the supplemental petition fee set forth in such section, apply for adjustment of status under this subsection without regard to the limitation set forth in section 245(a)(1)(C) of the Immigration and Nationality Act (8 U.S.C. 1255(a)(1)(C)), as amended by paragraph (1).