Introductory

Information

The

PERM Process

What to Know

About Adjustment of Status

Frequently

Asked Questions

EB-1 and NIW Cases

What is KILP’ experience with EB-1 and NIW petitions?

A very significant part of our practice is focused on representing individuals seeking to qualify for permanent residence (“green card”) through the Extraordinary, Exceptional, Outstanding, or National Interest categories. Our success rate is such that over 25 universities, hospitals and research institutions, as well as other immigration attorneys, refer individuals to our firm to prepare these petitions.

How does KILP assist with the petition?

The firm’s EB-1 practice team works closely with you to prepare a petition that clearly reflects how your achievements meet the EB-1 and/or EB-2 regulatory standards.  In addition to working with you, we assist your referees in framing your achievements in terms a lay person can understand.  Our success with these petitions is based in large part on the time we spend understanding the nature and significance of your achievements, and translating very technical concepts into terms that the immigration adjudicators can understand and appreciate.  These detailed explanations, coupled with corroborating documentation, provide a picture of your accomplishments that facilitates the immigration examiner’s understanding of just how extraordinary you are.

With whom will I be working? Who is in charge of my case?

Although I am responsible for your case and am available to you as needed, we work on all cases as a team.  In addition to myself, you should expect to be communicating with at least one other professional, a technical writer, in my office.  The technical writer will have primary responsibility for helping to frame your achievements in terms that the immigration officer can understand.

What are my obligations?

You will need to provide a detailed written input statement describing your field, your accomplishments, the importance of your work, and other requested information.  As best you can, this information should be written in terms that a lay person could understand.  It is not a problem to use technical terms and concepts, as long as you explain the meaning behind those terms and concepts.  We will work with what you provide to draft detailed letters, but you will need to carefully edit and review this information.  This is therefore very much a collaborative effort between yourself and our team.  For example, you will be asked to respond to our requests for more information about your work or questions we may have regarding your input statement.  You will also be expected to identify appropriate referees, and to coordinate the sending and receiving of reference letters directly with your referees.

Will you give me any guidance in preparing the requested input statement?

Of course.  We provide a detailed Input Questionnaire with specific questions to answer and information to provide in written form.  The Input Questionnaire also outlines documentation that you will need to send.  When you are ready to proceed, we will have an input call to review the information and documentation requested in the questionnaire, and guide you specifically on what is needed for your individual situation.  This call will be about an hour.  We will also provide samples of input statements to give you an idea of the level of detail and technicality required.

What is the time frame for preparing the case?

Our work generally takes about two months from the time you provide us the requested information to get started with our work.  We estimate approximately another two months for you to review and edit the reference letters, for us to make the requested changes, for you to forward the reference letters to the referees, for the referees to review and sign the reference letters and get them back to us, and for us to prepare the final transmittal letter to USCIS.

How long will it take the government to decide the case?

Government processing times vary, and the most current processing times are posted atwww.uscis.gov.  Presently, the average government processing time for EB-1 cases is about 8 months.  The average government processing time for NIW cases is also about 8 months.  The average processing time for the application for permanent residence is six months, but it will only be processed once the EB-1 or NIW is approved, and the priority date is current.  The average processing time for the applications for employment authorization and travel document, after the filing of the application for permanent residence, is ninety days.

Should I file 1 petition or multiple petitions?

We generally recommend filing multiple petitions.  We do not charge additional for filing both an EB-1 and an NIW application at the same time.

Should I file the application for permanent residence at the same time (concurrently) with the I-140 Petition?

If you are not subject to a quota backlog, you have the option of filing concurrently.  Once we are working on your case, we will provide our recommendation; but the final decision is yours.

What are the legal fees, and what do the legal fees include?

We will provide you a fixed legal fee during the consultation once we evaluate your case.  The legal fee is broken down based on the stages of preparation and filing, and a breakdown will also be provided during your consultation.  Please ask any questions you may have about the quoted legal fee and what it includes.The legal fee includes all of the legal services specified above, as well as our preparation of a detailed transmittal letter to USCIS explaining how and why you qualify for EB-1 or NIW, advice regarding premium processing and concurrent filing, preparation of all government forms, preparation of applications for permanent residence, preparation of applications for employment authorization, preparation of applications for travel documents, prompt response to all telephonic and email inquiries, and follow up with USCIS if there are processing delays.  In addition, we do not bill separately for miscellaneous costs and expenses, including photocopies and FedEx.  Rather, we add 6% to each legal fee payment to cover the expenses.  We accept Visa, MasterCard and Discover.

What are the government filing fees?

The I-140 government filing is $580.  If you file more than one I-140, you will need to pay the $580 with each petition.  The filing fee for the I-485, including employment authorization and travel document applications, is $1070.  If you are including spouse or children fourteen years of age or older, they will also need to pay the $1070.  For children under 14, the filing fee is $635.  Government filing fees are separate from legal fees.

Do we need to meet during the course of the case?

You are always welcome to schedule a time to come in and discuss your case.  However, most people prefer to communicate by email and telephone.

What should I look for in choosing an EB-1/NIW attorney?

Click here to review a list of qualifications that you may want to consider in choosing the best EB 1/NIW attorney.

How do I get started?

Please advise me if you wish to pay the retainer payment by check or credit card.  If you wish to pay by credit card, we will email you a credit card authorization form.  Once we receive your retainer payment, we will schedule the input call and proceed as we explained above.

Are you interested in receiving referrals of friends and colleagues who need immigration assistance?

Many of our clients are referred by universities and hospitals, as well as our appreciative EB-1 clients.  We very much appreciate your referrals.

Employment-Based Permanent Resident Status or “Green Card”

What is a “green card”?

A green card, also known as a “Permanent Resident Card”, “Alien Registration Receipt Card” or “Form I-551” is a plastic card which documents that an individual has the authority to live and work in the U.S. indefinitely (called “lawful permanent residence”). This identification document is mostly commonly known as the “green card” because it is green. The green card contains the individual’s photo, fingerprint, signature as well as other identifying information. While the card itself may expire and have to be renewed, the individual’s status as a lawful permanent resident (LPR) remains in effect unless it is abandoned or taken away.

Who is eligible to apply for permanent resident status or a green card?

There are five categories of individuals who are eligible to apply for permanent resident status. They are:

  • Family-Sponsored Immigrants (Spouses, sons and daughters, and parents of U.S. citizens, and spouses and unmarried sons and daughters of permanent residents).
  • Employment-Based Immigrants (see below).
  • Investment-Based Immigrants (Investors of $500,000 – $1 million in a U.S. business that creates jobs for ten U.S. workers).
  • Refugee and Asylum (Persons fleeing persecution in their home countries).
  • Diversity (DV) Lottery (Persons from countries with below-average immigration to the U.S. selected in an annual lottery).

What is the process for obtaining an employment-based green card?

The process may involve two or three steps. If an individual qualifies as extraordinary in his or her field or the individual’s employment is in the “national interest”, then the individual or his or her employer is required to file the Form I-140, Petition for Immigrant Worker, with supporting documentation. If the individual qualifies as a multinational manager or outstanding researcher, then the employer must file the I-140 petition. However, if the individual does not fall into one of these categories, then the employer must complete the labor certification process prior to filing the Form I-140. Concurrently with the filing of the I-140 petition, the individual may be eligible to file Form I-485, Application to Register Permanent Residence or Adjust Status.

Is it necessary to be sponsored by an employer?

No. If an individual qualifies as extraordinary in his or her field or if his or her work is in the “national interest,” then he or she may file a self-sponsored petition.

What is the labor certification process?

Protections for U.S. workers are built into the system. Most employment immigrant cases require Department of Labor certification that no U.S. workers are able, qualified or willing to take the position offered to the foreign national and that admitting the immigrant will not negatively impact the wages and working conditions of similarly situated U.S. workers.

Who can qualify without the labor certification process?

The categories exempt from this requirement are those individuals who are recognized to be extraordinary in their field, whose employment is in the “national interest,” or who are outstanding professors or researchers, multinational managers, investors, certain religious ministers or workers, and a small number of “special immigrants.”

How long will it take to obtain a green card?

It is quite difficult to accurately predict exactly how long the process will take. Employers must consider the processing time for petitions and applications at the United States Citizenship and Immigration Services’ Regional Service Centers, the PERM process for labor certification processing for the Department of Labor and also the availability of visa numbers. No approval is guaranteed. Cases may take anywhere from 18 months to four years or more depending on these factors.

May the employee remain in the U.S. during the immigrant process?

An employee may not remain in the U.S. merely because a labor certification or immigrant visa petition is pending. The entire process may take place in the U.S. if the individual is able to maintain his or her valid nonimmigrant visa status (J-1, H-1B, L-1, etc.) until the Form I-485, Application to Register Permanent Residence or Adjust Status can be filed. Once the I-485 is filed, the employee may remain in the U.S. until it is adjudicated.

May an individual work while a petition is pending?

An individual may not be employed in the U.S. merely because a labor certification or immigrant visa petition is pending. An individual may work while a petition is pending if he or she is authorized for employment in the U.S. by maintaining a valid nonimmigrant working visa status such as H-1B or L-1. In addition, he or she may file a Form I-765, Application for Employment Authorization, at the same time the Form I-485 package is submitted. Approval of the Employment Authorization Document (EAD) allows the individual to work even without a valid nonimmigrant working visa status.

May an individual travel while their petition is pending?

An individual may travel during the labor certification process and while the I-140 is pending if he or she has a valid nonimmigrant visa. An individual may travel while the I-485 adjustment is pending if he or she has obtained an advance parole document and/or is currently in valid H-1B or L-1 status.

What happens if an individual switches jobs or changes employers while a petition is pending or after it has been approved?

For an employer-sponsored petition, a change in employer (or even location of employment) will likely mean that the process must start over from the beginning unless the change takes place more than 180 days after the filing of the I-485 package and the change is to a position in the “same or similar” occupation. Self-petitioners who change employment within their field will usually be able to continue with the pending petition.

After having received an immigrant petition approval notice, when can an individual expect to be scheduled for an interview?

If an individual elects to complete the process abroad at a U.S. Consulate, it could take four to ten months before an appointment is scheduled. If he or she elects to remain in the U.S., the adjustment of status process can take from 12 to 24 months or more.

How long must a legal permanent resident (LPR) remain with an employer?

There is no required amount of time that an LPR must remain with an employer. LPRs must be able to demonstrate that their intention at the time of adjustment to LPR status or entry as an immigrant is to remain with the sponsoring employer indefinitely.

Is there any required amount of time that an LPR must remain in the U.S.?

Yes. Absences of one year or more may result in loss of LPR status unless a reentry permit is applied for in advance of departure from the U.S. Absences of six months or more may result in questioning upon return to the U.S. as to whether the LPR has abandoned his or her residence in the U.S.

Does an LPR lose his or her citizenship?

No, LPR status in the U.S. does not affect one’s citizenship of another country.

May an LPR apply for U.S. citizenship?

Yes. An LPR may apply for naturalization as a U.S. citizen after maintaining LPR status for five years, assuming certain residence and physical presence requirements are met. If an individual is married to and living with a U.S. citizen, then he or she may apply after maintaining LPR status for three years.

Is an LPR required to give up his or her citizenship if he or she applies for naturalization as a U.S. citizen?

The U.S. can only confer U.S. citizenship on an individual, and cannot force a person to lose any other citizenship which they hold. In some instances, an individual’s country of citizenship will regard the person as having lost citizenship in his or her country of nationality when he or she becomes naturalized as a U.S. citizen. Individuals who wish to maintain dual citizenship should consult with officials of their country of current citizenship.

May a spouse and dependent children (unmarried children under the age of 21) be included in the I-140 petition and subsequent I-485 adjustment of status application?

Yes, a spouse and dependent children may be included.

Are spouses and/or dependent children eligible to apply for employment authorization and an advance parole travel document?

Yes, all applicants who apply for adjustment of status are eligible to apply for employment authorization and advance parole.

Green Card Quota Backlogs

WHAT IS THE “QUOTA BACKLOG”?

The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date”. The priority date is the single, most important, factor in any immigration case.

WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?

Employment-Based First Preference (EB-1)
Employment-Based Second Preference (EB-2)
Employment-Based Third Preference (EB-3)
Other Workers

WHAT DOES EB-1 MEAN?

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

WHAT DOES EB-2 MEAN?

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s Degree PLUS five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected

WHAT DOES EB-3 MEAN?

Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor’s degree or two years of training). The position must require a minimum of a bachelor’s degree or two years of training.

WHAT DOES “OTHER WORKERS” MEAN?

Other workers include positions that require less than two years of experience.

WHAT IS THE “PRIORITY DATE”?

If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed under PERM. If your category is employment-based but does not require a labor certification, then the priority date is established on the date USCIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.

WHY IS THE PRIORITY DATE IMPORTANT?

In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being “current”. The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.

CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?

There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

THE I-140 FILED ON MY BEHALF WAS BASED ON A LABOR CERT SUBSTITUTION. WHAT IS MY PRIORITY DATE?

The Priority Date is determined by USCIS. We will know the Priority Date upon issuance of an I-140 Petition Approval Notice.

WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING “U” (UNAVAILABLE) AND “MM/DD/YY” (QUOTA BACKLOG)?

Unavailable means that there are no more visas available at all for the month. If there is a date noted (i.e., 07-01-02), it is considered to be the cut-off date, and that means that there is a “quota backlog”. Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.

WHAT DOES “C” MEAN?

“Current” – this means that there is no quota backlog in this category.

WHAT DOES IT MEAN TO BE “CURRENT”?

If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.

IF THE VISA BULLETIN SHOWS A DATE OF 6-1-02 AND MY PRIORITY DATE IS 6-1-02, IS MY PRIORITY DATE CURRENT?

No. In order for the priority date to be current, it must be a date prior to the date published in the Visa Bulletin.

HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?

The priority dates considered “current” in each category are updated monthly by the Department of State, and are published in the Department’s Visa Bulletin (available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. The priority dates move forward and backward each month depending on the number of cases processed by the Department of State and by United States Citizenship and Immigration Services. While large movements do sometimes happen in order to use all of the available immigrant visas each year, we predict that backlogs will continue to be an issue unless Congress makes more immigrant visas available for skilled foreign nationals.

THE CUT-OFF DATE CURRENTLY LISTED IS FIVE (OR THREE AND A HALF, OR TWO) YEARS AGO. DOES THIS MEAN THAT IT WILL TAKE FIVE (OR THREE AND A HALF, OR TWO) YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?

No. It all depends on how many visas are used. Please see the answer to the above question.

I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?

You may use the Priority Date attached to the approved I-140 Petition. The Priority Date will be printed in the top portion of the Form I-797 Approval Notice. You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer’s green card process.

VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OR CITIZENSHIP OR COUNTRY OF BIRTH?

Your country of birth is what determines your country of chargeability.

MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY EMPLOYMENT, DOES MY SPOUSE’S COUNTRY OF BIRTH HELP ME?

Your spouse’s country of birth also may be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

BOTH MY WIFE AND I WERE BORN IN INDIA AND MY PRIORITY DATE IS NOT CURRENT. OUR CHILD WAS BORN IN THE UNITED KINGDOM AND THE PRIORITY DATE FOR THAT COUNTRY IS CURRENT. CAN WE USE OUR CHILD’S COUNTRY OF BIRTH FOR ELIGIBILITY?

No. You can use your spouse’s country of birth for eligibility. However, your child’s country of birth cannot be used.

I HAVE HEARD THAT ONLY THOSE INDIVIDUALS FROM INDIA AND CHINA ARE SUBJECT TO QUOTA BACKLOGS. I WAS NOT BORN IN ONE OF THOSE COUNTRIES. DO QUOTA BACKLOGS APPLY TO ME?

Yes. Quota backlogs can apply to everyone, regardless of where they are from. While the backlogs have typically affected some countries more than others, note that on the current Visa Bulletin, the backlogs apply to all countries for the EB-3 preference category.

MY EMPLOYER HAS A LABOR CERTIFICATION PENDING ON MY BEHALF. DO QUOTA BACKLOGS AFFECT THE PROCESSING OF THE APPLICATION?

No. The labor certification process is not affected by quota backlogs.

CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?

Maybe. The visa category of a particular filing cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed.  Sometimes, starting the application again if your position or qualifications has changed can result in the new application having a more favorable preference category; however, that strategy is not possible in every case. 

THE LABOR CERTIFICATION FILED ON MY BEHALF WAS APPROVED. CAN THE COMPANY STILL FILE THE I-140 PETITION IF THE PRIORITY DATE IS NOT CURRENT?

Yes. The filing and adjudication of an I-140 is not affected by the quota backlogs.

MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT’S APPLICATION IS STILL PENDING AND MY PRIORITY DATE IS NO LONGER CURRENT. IS MY DEPENDENT’S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY APPLICATION IS APPROVED?

Yes. Even though your case was approved, your dependent’s application is still based on your priority date. USCIS cannot approve the dependent’s application until the priority date is current.

THE QUOTA BACKLOGS WERE NOT IN AFFECT WHEN I FILED MY I-485 APPLICATION. DOES A QUOTA BACKLOG AFFECT ME?

Yes. USCIS can work on the pending application. However, it cannot approve the application unless the priority date is current.

THE I-140 AND I-485 WERE CONCURRENTLY FILED AND BOTH ARE PENDING AT USCIS. WILL THE I-140 BE PROCESSED IF THE PRIORITY DATE IS NO LONGER CURRENT AND THE I-485 CANNOT BE APPROVED?

Yes. USCIS will continue to process the I-140 and it can be approved regardless of the quota backlog

CAN I INQUIRE REGARDING THE STATUS OF AN I-485 CURRENTLY PENDING AT USCIS IF I AM SUBJECT TO A QUOTA BACKLOG?

No. Under USCIS guidelines, inquiries may not be made on a case unless the priority date is current.

IF MY I-485 APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT, WILL USCIS STILL ISSUE A FINGERPRINT NOTICE AND/OR RFE?

It may. USCIS can still process the case but cannot approve it until the priority date is current. Therefore, you may receive requests for evidence or biometrics appointments. It is important to comply with these requests. Even though the case cannot be approved, it can be denied for failure to provide information or show up for biometrics.

MY I-485 HAS BEEN PENDING A LONG TIME DUE TO SECURITY AND BACKGROUND CHECKS. ONCE THEY CLEAR, CAN MY CASE BE APPROVED IF MY PRIORITY DATE IS NO LONGER CURRENT?

No. Even though the only issue may have been the security and background checks, USCIS cannot approve the case until the priority date is current.

DOESN’T USCIS ASSIGN ME A VISA NUMBER WHEN THE CASE IS FILED?

No. Immigrant visa numbers are not assigned to a case until right before approval.

CAN I STILL OBTAIN EAD CARDS AND AP DOCUMENTS IF MY I-485 IS PENDING AND I AM NOW SUBJECT TO A QUOTA BACKLOG?

Yes. As long as you have a pending I-485 application at USCIS, you are eligible to apply for and receive EAD and AP documents.

MY ADJUSTMENT APPLICATION IS PENDING AND I RECENTLY MARRIED. CAN I ADD MY SPOUSE TO THE APPLICATION (I.E., CAN MY SPOUSE FILE THEIR I-485) IF MY PRIORITY DATE IS NOT CURRENT?

No. In order to add a dependent to the pending application, the priority date must be current.

MY BIOMETRICS HAS ALREADY BEEN TAKEN. HOWEVER, DUE TO THE QUOTA BACKLOG, THEY MAY EXPIRE. WILL USCIS REQUIRE ME TO REDO MY BIOMETRICS?IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?

Yes. Biometrics results expire after 15 months. USCIS will review the fingerprints at the time that they are ready to complete the adjudication of the I-485. If the results have expired, they will send out a new biometrics appointment notice.

IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?

USCIS may ask for updated employment information. However, new photos and medical exams should not be required.

IF I AM NOT ABLE TO FILE THE I-485 DUE TO QUOTA BACKLOGS, IS THERE ANOTHER WAY FOR MY H-4 SPOUSE TO OBTAIN WORK AUTHORIZATION?

An I-765 (EAD) application cannot be filed unless an I-485 is pending. Therefore, your spouse will not be eligible for an EAD card and will need to seek employment sponsorship for work authorization.

IF THE I-140 PETITION FILED ON MY BEHALF IS STILL PENDING AND MY PRIORITY DATE BECOMES CURRENT, MAY I FILE MY ADJUSTMENT APPLICATION?

Yes, if you have an I-140 Petition pending and your Priority Date becomes current, you and your dependents may file your adjustment applications as long as the Priority Dates remain current.

I AM RUNNING OUT OF H-1B TIME. WHAT WILL HAPPEN TO MY H-1B STATUS IF THE QUOTA BACKLOG HOLDS UP MY GREEN CARD APPLICATION?

The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for extension of H-1B time, in increments of three years, on your behalf. Your dependent’s H-4 status may also be extended.

If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one year increments, as long as the labor certification or I-140 petition have been pending more than 365 days.

IF I AM NOT ABLE TO FILE THE I-485 AND THEN LOSE MY JOB OR CHANGE JOBS, DOES AC21 PORTABILITY PROTECT ME?

No. In order to take advantage of AC21 portability, the I-140 Petition must be approved and the I-485 must be filed and pending over 180 days.

DUE TO THE QUOTA BACKLOGS, I WANT TO REVIEW MY OPTIONS FOR IMMIGRATING THROUGH A U.S. CITIZEN. I HAVE MINOR U.S. CITIZEN CHILDREN AND I HAVE A U.S. CITIZEN SPOUSE, CAN THEY SPONSOR ME FOR PERMANENT RESIDENCY?

Unfortunately, a child cannot sponsor you for a permanent residency until they are at least 21 years old. However, if you have a U.S. citizen child who is over 21 or a U.S. citizen spouse, please contact us to discuss your options.

PERM

What Is PERM?

PERM is a system through which employers can hire a foreign national by submitting an application electronically or by mail to DOL in which they attest that they have taken certain steps to recruit U.S. workers and that they have been unable to locate a qualified U.S. worker for the position. Employers will be responsible for documenting their compliance with the recruitment steps enumerated in the regulations, but they will only submit that documentation to DOL if DOL chooses to audit their applications. All labor certification applications for full-time permanent positions filed on or after March 28, 2005, must comply with these regulations.

Where And How Are PERM Labor Certification Applications Processed?

PERM centralizes processing of labor certification applications at two national processing centers, one in Atlanta and one inChicago. Previously, labor certification applications were filed locally with State Workforce Agencies (SWAs), the state-level organizations responsible for unemployment insurance, job training and placement of workers. Under the PERM program, applications are no longer submitted to SWAs for processing, though SWAs will continue to provide determinations of the prevailing wages for occupations through their Labor Market Information (LMI) units.

How Long Will It Take DOL To Process A PERM Application?

Through electronic filing and the audit-based adjudication process, DOL reports that “clean” applications take less than 60 days to adjudicate. In users’ experience, applications may be processed very quickly – sometimes in less than a week – but normally take 60-90 days. Processing times for audited cases also vary, with some being decided quickly and others not processed for months.

How Is Recruitment Being Handled Under PERM?

PERM’s goal is to make nationally uniform the requirements for the recruitment steps an employer must take prior to filing an application for labor certification, and to require every application to undergo pre-filing recruitment. Employers must utilize several forms of recruitment within the six months prior to filing the application, must place a job order with the State Workforce Agency (SWA), must post an internal notice of the job opportunity on site at the company as well through any in-house company media in which jobs are ordinarily posted, and must secure a prevailing wage determination from the SWA.

What Print Ads Are Required Under PERM?

 Prior to filing an application for labor certification, an employer must place two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. For higher-level positions requiring experience and an advanced degree, the employer may use an advertisement in a professional journal in place of one of the Sunday ads. Both ads must have been placed more than 30 days, but not more than 180 days, before filing, and may be placed on consecutive Sundays. The ad must list the name of the employer, the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), and a description of the position specific enough to apprise U.S. workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Application for Permanent Employment Certification, Form 9089. The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer’s physical address is not required. A central office or post office box may be designated for receipt of resumes. The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage, as determined by the SWA.

Must A SWA Job Order Be Placed Under PERM?

The employer must place a job order with its local SWA for the position. The job order should contain the same information as the advertisement, and the employer should request that the SWA refer any potentially qualified applicants directly to the employer.

Are Recruitment Steps For Professional And Non-Professional Jobs The Same?

The recruitment for a professional occupation (those for which the attainment of a bachelor’s or higher degree is the usual education requirement) consists of a job order and two print ads plus three additional steps. The recruitment for non-professional occupations consists only of a job order and the two Sunday advertisements.

What Are The Three Additional Recruitment Steps for Professional Jobs?

An employer must both advertise the opening and carry out three additional recruitment steps, choosing from the following options: (1) attendance at job fairs; (2) advertisement of the position on the employer’s website; (3) advertisement of the position on a job search website other than employer’s, including an ad on a newspaper’s web site in conjunction with a print ad; (4) participation in on-campus recruiting; (5) placing a notice in a newsletter or publication of a trade or professional organization; (6) retaining private employment firms; (7) including the position in an employee referral program, if it includes identifiable incentives; (8) placing a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) advertisement in local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) placing radio and television advertisements. The employer must conduct three separate recruitment steps; i.e., may not conduct one of the three steps three times. With respect to these additional steps, an employer may advertise either for the specific job opportunity, or merely for the occupation involved in the application. All three recruitment steps must have taken place no more than 180 days before filing, but only one of the steps may have taken place within 30 days of filing. The employer must specify the dates of each of the three additional recruitment steps it has undertaken on the application form, and maintain documentation of the recruitment step, such as a dated printout from a website, or a flyer announcing the employer’s participation in a job fair.

Does PERM Require An Employer to Post a Notice of Job Opportunity?

 An employer must post a Notice of Job Opportunity in conjunction with the outside recruitment for the position. The notice must be posted for a period of ten business days, and the notice period may be no more than 180 days before filing and no less than 30 days before filing. The Notice is posted at a location such as an employee notification bulletin board in an area accessible to all of the employer’s employees. The Notice must contain the salary for the position, but may contain a salary range so long as the lower level of the range meets or exceeds the prevailing wage. The notice may contain the same description of the position as is placed in the newspaper advertisement, and should include a contact person for employees who wish to apply for the position. In addition, the notice must contain language indicating that the posting is in connection with an application for labor certification, and that any person having information bearing on the application can submit that information to the Department of Labor. Importantly,in addition to a printed posted notice, an employer must place the notice in any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization. The notification must include all information posted in print, including salary range and DOL contact information. Since the notification in such media need only be done if it is the employer’s normal practice to do so for the job classification in issue in the application, an employer could avoid listing executive-level positions if it is not normal practice to do so. Duration of the in-house media notification should be as long as other comparable positions are posted.

Can An Employer Use Qualification in Excess of What DOL Considers “Normal?”

DOL will generally not allow an employer to use job requirements that exceed the requirements for a position as found in the DOL’s description of the occupation in its Standard Occupational Classification (SOC) system unless the employer can justify it on the basis of “business necessity.” To meet this exception, the employer must show that the requirements are reasonably related to the position and necessary to perform the job duties in the context of the employer’s operation. This ability to deviate from the SOC system is important, as that system categorizes jobs into far fewer categories than the Dictionary of Occupational Titles formerly used to measure “normal” requirements.

Can Experience Gained With The Petitioning Employer Be Used?

Employers may use experience gained by a foreign national with the petitioning employer (as an employee or contractor), but only where the experience was gained in a position that was not “substantially comparable” to the position involved in the labor certification. A prior position will be considered “substantially comparable” if at least 50% of the duties of the two positions are the same. For example, if a software engineer who spends 100% of her time implementing software is promoted to a team leader position in which she spends 20% of her time managing and 80% of her time implementing software, the two positions are “substantially comparable” and her experience as a software engineer cannot be used to qualify her for the position of team leader (of course, her experience prior to joining the employer as a software engineer could be used, if it was enough to qualify her as a team leader).

Is The Use Of Alternative Experience Permitted?

Any alternative means for a worker to be considered qualified must be “substantially equivalent” to the primary means of being considered qualified. For example, if the labor certification application involves a household cook position, it would be reasonable to require one year of experience as a household cook or, alternatively, one year of experience as a restaurant cook, as the two periods of cooking experience are comparable. It would not be reasonable to require one year as a cook or, alternatively, one year of experience as a “household worker with some cooking duties” as the alternative requirement is less stringent than the primary requirement.

If The Job Requires Four Skills And A Job Applicant Lacks One Of These Four Skills, Is This A Lawful Reason To Reject The Applicant?

Lack of one of four required skills may not be enough to lawfully reject an otherwise qualified U.S. worker. The employer will need to explore and evaluate whether the U.S. worker applicant could perform the job with a reasonable amount of on the job training in the lacking skill(s). What is reasonable will depend on the particular employer and the job opportunity. For example, if it would not be reasonable to spend six months training a U.S. worker in one of the required four skills, this would need to be explained and documented.

What Salary Does PERM Require Employers To Pay In Connection With The Labor Certification Position?

An employer must complete a Prevailing Wage Determination Request Form (PWDR) and file it with the SWA before filing the Labor Certification Application. The SWA will use its wage survey data to provide a prevailing wage unless an employer provides an acceptable alternative survey. The SWA uses DOL’s Online Wage Library to provide a wage level based on a formula that compares the employer’s requirements to the DOL’s Standard Vocational Preparation criteria. The employer also has the option of using a qualifying survey, which must meet certain specified criteria to be considered acceptable. These criteria are essentially the same as the criteria under RIR except that a median figure, not just an arithmetic mean, can in certain circumstances be used for the prevailing wage.

The employer must attest that it will pay 100% of the prevailing wage at the time that the foreign national beneficiary obtains permanent residence on the basis of the Labor Certification.

What Can An Employer Do If It Does Not Agree With The SWA Prevailing Wage Determination And It Cannot Find A Qualifying Alternate Survey?

An employer has the opportunity for one submission of additional information to persuade the SWA to change the appropriate skill level or job classification or find that the alternative survey qualifies. After that one submission is made, the employer may either appeal the SWA’s determination to the Certifying Officer or file a new prevailing wage request. If the employer does not agree with the Certifying Officer’s determination, then the employer may file an appeal to BALCA.

How Long Is The PWD Valid?

The SWA specifies the validity period of the prevailing wage on the PWDR form. It must be valid for at least 90 days and no more than one year from the determination date on the form. Employers must either begin the recruitment, or file their PERMapplications, within the validity period on the PWDR.

What Recruitment Documentation Must Be Prepared By Employer?

The employer must prepare documentation of all of its recruitment steps, such as newspaper tearsheets for advertisements and printouts of web sites. The employer should maintain copies of all resumes or applications submitted in connection with the recruitment steps. In addition, the employer must prepare a recruitment report that describes the recruitment steps taken and the results. This report shall include the number of hires and the number of U.S. workers rejected, categorized by the lawful job‑related reasons for rejection. Although it does not need to include the identity of the individual U.S. workers who applied for the job opportunity, it must track them sufficiently that an auditor can determine which resumes were evaluated for each job opportunity. The employer must sign the recruitment report and retain it as part of the supporting documentation.

What Must Employer Do If Application Is Selected For Audit?

If an application is selected for audit, the employer is required to provide the supporting documentation within 30 days of a request by a Certifying Officer (CO). After the documentation has been submitted, the CO can approve the application or deny the application. In addition, if the Certifying Officer is not satisfied that the documentation establishes unavailability of U.S. workers, the CO may require supervised recruitment after the filing. The supervised recruitment will involve a new newspaper advertisement and job order, this one directing responses to the CO, and the employer will be expected to give an applicant-by-applicant evaluation of whether the applicants met the qualifications for the position. If an employer fails to respond to a request for documentation, or is deemed to have misrepresented the recruitment steps it took or its reasons for rejecting U.S. workers, the CO may require the employer to use supervised recruitment for all of its applications for a period of up to two years.

How Long Must Employer Retain Recruitment Documentation?

The employer must retain its recruitment documentation for five (5) years from the date of filing of the application, as the DOL may reopen its labor certification determination even after approval and conduct an audit.

What Happens To Pending Cases and New Cases Prior to March 28, 2005?

Pending cases and new cases filed before PERM’s effective date will continue to be processed under the current system, if the employer wishes.

Can Cases Filed Under the Current System Be Converted To A PERM Case?

A pending case can be converted to a PERM case, while preserving the original filing date, by withdrawing the pending case and refiling it. A case may be withdrawn and refiled if it is an RIR application, or if it is a “traditional” application for which supervised recruitment has not yet begun. In order to be refiled and keep the original filing (priority) date, the application must be for the “identical job opportunity,” and must otherwise comply with all of the PERM requirements. If it is found not to be “identical,” then the earlier filing date or priority date will be lost. In order to refile, therefore, an employer would need to have conducted recruitment that meets the PERM standards no more than 180 days prior to the request for conversion. Given the expense of newspaper advertising alone, many employers will opt to leave their RIR cases pending with DOL rather than converting them to PERM.

Recruitment Under PERM

How is Recruitment Handled Under PERM?

PERM’s goal is to make nationally uniform the requirements for the recruitment steps an employer must take prior to filing an application for labor certification, and to require every application to undergo pre-filing recruitment. Employers must utilize several forms of recruitment within the six months prior to filing the application, must place a job order with the State Workforce Agency (SWA), must post an internal notice of the job opportunity on site at the company as well through any in-house company media in which jobs are ordinarily posted, and must secure a prevailing wage determination from the SWA.

Are Print Ads Required Under PERM?

Prior to filing any application for labor certification, an employer must place two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. For higher-level positions requiring experience and an advanced degree, the employer may use an advertisement in a professional journal in place of one of the Sunday ads. Both ads must have been placed more than 30 days, but not more than 180 days, before filing, and may be placed on consecutive Sundays. The ad must list the name of the employer, the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), and a description of the position specific enough to apprise U.S. workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Application for Permanent Employment Certification, Form 9089. The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer’s physical address is not required. A central office or post office box may be designated for receipt of resumes. The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage, as determined by the SWA.

Must A SWA Job Order Be Placed Under PERM?

The employer must place a job order with its local SWA for the position. The job order should contain the same information as the advertisement, and the employer should request that the SWA refer any potentially qualified applicants directly to the employer.

Are Recruitment Steps For Professional And Non-Professional Jobs The Same?

The recruitment for a professional occupation (those for which the attainment of a bachelor’s or higher degree is the usual education requirement) consists of a job order and two print ads plus three additional steps. The recruitment for non-professional occupations consists only of a job order and the two Sunday advertisements.

What Are The Three Additional Recruitment Steps for Professional Jobs?

An employer must both advertise the opening and carry out three additional recruitment steps, choosing from the following options: (1) attendance at job fairs; (2) advertisement of the position on the employer’s website; (3) advertisement of the position on a job search website other than employer’s, including an ad on a newspaper’s web site in conjunction with a print ad; (4) participation in on-campus recruiting; (5) placing a notice in a newsletter or publication of a trade or professional organization; (6) retaining private employment firms; (7) including the position in an employee referral program, if it includes identifiable incentives; (8) placing a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) advertisement in local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) placing radio and television advertisements. The employer must conduct three separate recruitment steps; i.e., may not conduct one of the three steps three times. With respect to these additional steps, an employer may advertise either for the specific job opportunity, or merely for the occupation involved in the application. All three recruitment steps must have taken place no more than 180 days before filing, but only one of the steps may have taken place within 30 days of filing. The employer must specify the dates of each of the three additional recruitment steps it has undertaken on the application form, and maintain documentation of the recruitment step, such as a dated printout from a website, or a flyer announcing the employer’s participation in a job fair.

Does PERM Require An Employer to Post a Notice of Job Opportunity?

An employer must post a Notice of Job Opportunity in conjunction with the outside recruitment for the position. The notice must be posted for a period of ten business days, and the notice period may be no more than 180 days before filing and no less than 30 days before filing. The Notice is posted at a location such as an employee notification bulletin board in an area accessible to all of the employer’s employees. The Notice must contain the salary for the position, but may contain a salary range so long as the lower level of the range meets or exceeds the prevailing wage. The notice may contain the same description of the position as is placed in the newspaper advertisement, and should include a contact person for employees who wish to apply for the position. In addition, the notice must contain language indicating that the posting is in connection with an application for labor certification, and that any person having information bearing on the application can submit that information to the Department of Labor. Importantly,in addition to a printed posted notice, an employer must now place the notice in any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization. The notification must include all information posted in print, including salary range and DOL contact information. Since the notification in such media need only be done if it is the employer’s normal practice to do so for the job classification in issue in the application, an employer could avoid listing executive-level positions if it is not normal practice to do so. Duration of the in-house media notification should be as long as other comparable positions are posted.

Can An Employer Use Qualification in Excess of What DOL Considers “Normal?”

DOL will generally not allow an employer to use job requirements that exceed the requirements for a position as found in the DOL’s description of the occupation in its Standard Occupational Classification (SOC) system unless the employer can justify it on the basis of “business necessity.” To meet this exception, the employer must show that the requirements are reasonably related to the position and necessary to perform the job duties in the context of the employer’s operation. This ability to deviate from the SOC system is important, as that system categorizes jobs into far fewer categories than the Dictionary of Occupational Titles currently uses to measure “normal” requirements.

Can Experience Gained With The Petitioning Employer Be Used?

Employers may continue to use experience gained by a foreign national with the petitioning employer (as an employee or contractor), but only where the experience was gained in a position that was not “substantially comparable” to the position involved in the labor certification. A prior position will be considered “substantially comparable” if at least 50% of the duties of the two positions are the same. For example, if a software engineer who spends 100% of her time implementing software is promoted to a team leader position in which she spends 20% of her time managing and 80% of her time implementing software, the two positions are “substantially comparable” and her experience as a software engineer cannot be used to qualify her for the position of team leader (of course, her experience prior to joining the employer as a software engineer could be used, if it was enough to qualify her as a team leader).

Is The Use Of Alternative Experience Permitted?

Any alternative means for a worker to be considered qualified must be “substantially equivalent” to the primary means of being considered qualified. For example, if the labor certification application involves a household cook position, it would be reasonable to require one year of experience as a household cook or, alternatively, one year of experience as a restaurant cook, as the two periods of cooking experience are comparable. It would not be reasonable to require one year as a cook or, alternatively, one year of experience as a “household worker with some cooking duties” as the alternative requirement is less stringent than the primary requirement.

If The Job Requires Four Skills And A Job Applicant Lacks One Of These Four Skills, Is This A Lawful Reason To Reject The Applicant?

Lack of one of four required skills may not be enough to lawfully reject an otherwise qualified U.S. worker. The employer will need to explore and evaluate whether the U.S. worker applicant could perform the job with a reasonable amount of on the job training in the lacking skill(s). What is reasonable will depend on the particular employer and the job opportunity. For example, if it would not be reasonable to spend six months training a U.S. worker in one of the required four skills, this would need to be explained and documented.

What Salary Does PERM Require Employers To Pay In Connection With The Labor Certification Position?

An employer must complete a Prevailing Wage Determination Request Form (PWDR) and file it with the SWA before filing the Labor Certification Application. The SWA will use its wage survey data to provide a prevailing wage unless an employer provides an acceptable alternative survey. The SWA will be required to provide at least four wage levels instead of the two (entry-level and experienced) it currently provides. If only two levels are available for the government wage survey, an arithmetic formula will be used to determine two additional wage levels. We expect that these four wage levels will substantially improve the situation for obtaining more appropriate prevailing wage determinations. The employer also has the option of using a qualifying survey, which must meet certain specified criteria to be considered acceptable. These criteria are essentially the same as the criteria under RIR except that a median figure, not just an arithmetic mean, can in certain circumstances be used for the prevailing wage.

The employer must attest that it will pay 100% of the prevailing wage at the time that the foreign national beneficiary obtains permanent residence on the basis of the Labor Certification. This is different from RIR, which only required that the employer pay 95% of the prevailing wage.

What Recruitment Documentation Must Be Prepared By Employer?

The employer must prepare documentation of all of its recruitment steps, such as newspaper tearsheets for advertisements and printouts of web sites. The employer should maintain copies of all resumes or applications submitted in connection with the recruitment steps. In addition, the employer must prepare a recruitment report that describes the recruitment steps taken and the results. This report shall include the number of hires and the number of U.S. workers rejected, categorized by the lawful job‑related reasons for rejection. Although it does not need to include the identity of the individual U.S. workers who applied for the job opportunity, it must track them sufficiently that an auditor can determine which resumes were evaluated for each job opportunity. The employer must sign the recruitment report and retain it as part of the supporting documentation.

Medical Examination and Vaccination Record: Best Practices and Frequently Asked Questions

All applicants filing Form I-485 for adjustment of status to that of a lawful permanent resident must submit Form I-693 completed by a designated civil surgeon.  Form I-693 is used to report the results of a medical examination to the U.S. Citizenship and Immigration Services.  The examination is required to establish that an applicant is not inadmissible to the United States on public health grounds.  To locate a civil surgeon, please click here.

All applicants for permanent residence are required to present the examining physician with proof of vaccination against mumps, measles, rubella, polio, tetanus, diphtheria, pertussis, Type B influenza, hepatitis B, varicella, haemophilus influenza type B, and pneumococcus.  If you and your family cannot present proof of having received one or more of the required vaccines, you will have to receive such vaccination prior to receiving an approved medical certificate.  The doctor is required to note each of your vaccination records on the Vaccination Supplement form.

Certain vaccines may not be required if you have a medical condition that prevents you from receiving it.  If this is the case, the civil surgeon will annotate the Form I-693 accordingly, marking the vaccine as contraindicated.  However, contraindication is only permissible under very limited circumstances.  Click here for further details about the grounds for contraindication.

After the exam, the physician will complete and seal the Form I-693 and Vaccination Supplement in an envelope and return them to you.  Please forward these to our office in the sealed envelopes.  Do not open the envelopesWe recommend requesting a copy of the completed Form I-693 and Vaccination Supplement from the physician to ensure that it was properly completed.  If either the vaccination chart or the I-693 is not properly completed, USCIS may return the Form I-693 with instructions on how to correct it, which will delay the adjudication of your Adjustment of Status petition.

What if I refuse to receive one or all of the required vaccines?

Under the following circumstances, you may be eligible for a waiver of one or more of the required vaccines:

  • You are opposed to vaccinations in any form– that is, you cannot obtain a waiver based on an objection only as to one vaccination; and
  • Your objection must be based on religious beliefs or moral convictions; and
  • The religious or moral beliefs must be sincere.

USCIS will require significant documentation to demonstrate that you meet these requirements for a vaccination waiver.

My civil surgeon or I believe that I am exempt from the TB test. Am I?

This is a question that seems to create a lot of confusion.  Note that the USCIS vaccine requirements are very stringent, and may oblige you to be vaccinated when either you or the civil surgeon believes you are exempt.  Every applicant for permanent residence must be administered either the TST or IGRA test for TB.  The only exemptions are as follows:

  • The applicant provides written documentation (with a healthcare provider’s signature) of a TST reaction of 5 mm or more of induration; or
  • The applicant has had a severe reaction with blistering to a prior TST; or
  • The applicant provides written documentation (with a healthcare provider’s signature) of a prior positive IGRA.

In these cases, the applicants must be administered a chest radiograph to evaluate for tuberculosis.

I am pregnant and do not wish to receive any vaccinations. Do I still have to get them to be able to obtain permanent resident status in the United States?

If you are pregnant or believe you may be pregnant, USCIS may still require you to have the vaccines.  While you can certainly defer any of these vaccines until later in the pregnancy or after delivery, that means you would need to also defer filing the I-485 adjustment of status.

The Centers for Disease Control and Prevention’s Technical Instructions direct the civil surgeon to evaluate the vaccines you are able to receive during pregnancy.  If the civil surgeon cannot safely administer a required vaccine, he/she will annotate the Form I-693 by marking the vaccine as contraindicated.  Pregnancy is only considered to be a valid contraindication for MMR, varicella, and intranasal influenza vaccines.  It is not considered to be a valid contraindication for receiving the Td, Tdap, inactivated influenza, or the hepatitis B vaccines; if your civil surgeon exempts you from any of these vaccines because you are pregnant, USCIS may return the Form I-693 with further instructions, which will delay the adjudication of your Adjustment of Status petition.

For additional questions about the vaccination requirements, please click here.

Concurrent Filing – I-140 and I-485

What Is Concurrent Filing?

Persons seeking to immigrate to the United States as employment-based immigrants must complete two separate processes in order to become permanent residents. First, they must establish that they qualify in one of the employment-based immigrant categories, by filing Form I-140, Immigrant Petition for Alien Worker. Second, they must establish that they qualify for permanent residence under the general rules applicable to all immigrants, whether employment-based or not, which may be done in the United States by filing Form I-485, Application to Register Permanent Residence or Adjust Status, or from outside the United States by completing consular immigrant visa processing. In the past, persons had to wait for the U.S. Citizenship and Immigration Services (USCIS) to approve the I-140 before being able to pursue the second step of the process.

Concurrent filing, which became permissible under an interim rule announced on July 31, 2002, allows persons applying for permanent residence to submit the Form I-485, Application to Register Permanent Residence or Adjust Status, either along with a Form I-140, Immigrant Petition for Alien Worker, or after the I‑140 is filed but before it is approved, as long as there is no quota backlog in their immigrant category. Concurrent filing affects only the Adjustment of Status (I‑485) process, it does not affect those cases pursuing consular immigrant visa processing.

Must Concurrent Filing Be Used?

Absolutely not. An individual may continue to wait for approval of the I-140 before filing the I-485, and in many cases we advise that it is prudent to wait.

Who Is Allowed To File Concurrently?

Concurrent filing is available to individuals eligible to adjust to permanent resident status at the time an I-140 is filed on their behalf to classify them in the EB-1 category (alien of extraordinary ability, outstanding researcher, multi-national manager); the EB-2 category (advanced degree professional, national interest waiver; alien with exceptional ability); or the EB-3 category (professional or skilled worker). An immigrant visa number must be immediately available, meaning that the priority date must be current.

Persons who have engaged in unauthorized employment or otherwise violated their nonimmigrant status may not be eligible. Similarly, persons who are subject to the two-year home residence requirement are not eligible unless this requirement has been waived or the obligation has been fulfilled.

Can Form I-485 Be Filed After the I-140 Is Filed But Before It Is Approved?

Yes, once a Receipt Notice for the I-140 is issued, the I-485 can be filed along with this Receipt Notice and the petition and application will be matched up. This strategy may be advisable if the I-140 is ready to file, but the supporting documentation for the I-485 is not ready.

What Are the Benefits of Using Concurrent Filing?

One of the main benefits of concurrent filing is that it allows both the principal and his or her dependents to apply for employment authorization (EAD) and travel permission (advance parole). This ability to obtain employment authorization and travel permission is particularly important to those nonimmigrants approaching their maximum authorized stay in nonimmigrant categories such as “H” and “L,” as it may enable them to avoid violation of their status or the accrual of unlawful presence. In addition, the EAD allows job flexibility for the principal (ability to work without H, L or other non-immigrant approval) as well as travel flexibility (ability to travel without a visa).

Note that it is not always necessary for individuals to obtain both EAD and advance parole. For those maintaining H or L status, the advance parole can be used as a travel document and the H or L approval notice can be used to establish authorization to continue working for the sponsoring employer. EAD would only be required if the principal wanted to work beyond the scope of his or her H or L.

What Are the Risks of Using Concurrent Filing?

One of the main risks of concurrent filing is associated with not maintaining a valid, non-immigrant status. While proper filing of the I-485 does grant permission to remain in the U.S., it is not considered a non-immigrant status. Should the underlying I-140 be denied, the I-485 will also be denied, and applicants who have not maintained a valid, non-immigrant status will no longer have a lawful basis to remain in the U.S.

Issues relating to maintenance of status may be very complicated, and vary depending on the type of non-immigrant status each applicant holds. Therefore, it is very important to discuss potential risks to your or your dependents’ status before either deciding to file concurrently, or before deciding to use EAD or advance parole. In many cases, we advise maintaining a non-immigrant status at least until the I-140 is approved.

Will Concurrent Filing of an I-485 Result in a Faster Grant of Permanent Resident Status?

Not always. Because of constantly-changing processing times at the Service Centers and the dozens of consular posts which handle applications for immigrant visas, it is impossible to generally state that concurrent processing is always faster, or always slower, than consular immigrant processing.

If Concurrent Filing Is Not Used, Will It Delay the I-140 Adjudication?

To date, that has not been the experience of our office. However, how USCIS prioritizes cases is always subject to change.

Can Concurrent Filing Be Used If More Than One I-140 Is Filed on Behalf of the Same Beneficiary?If Concurrent Filing Is Used, and the I-485 is Eligible for Transfer from One I-140 to Another I-140, is there a Process to do so?

Yes, with a few caveats.

Generally, if an I-140 is filed seeking to classify a foreign national as an alien of extraordinary ability and a separate I-140 is filed requesting a national interest waiver for the same foreign national, he or she may submit, at the same time or subsequently, an I-485 with one of the I-140 petitions. USCIS has said that only one I-485 per applicant may be filed at a time. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.

The first caveat is if the I-485 accompanies the extraordinary ability I-140, but the national interest waiver I-140 is approved first, USCIS will not transfer the I-485 to the approved I-140 until the extraordinary ability I-140 has been adjudicated. If the extraordinary ability I-140 is approved, the I-485 will, in all likelihood, also be approved.

If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is current, USCIS will usually, but not always, match the pending I-485 to the approved petition. If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is not current, USCIS will not transfer the I-485 to the national interest I-140. USCIS can only transfer the I-485 if a visa number is available for that I-140 petition. Therefore, when the extraordinary ability I-140 is denied, and the national interest I-140 is approved but the priority date is not current, the I-485 will be denied.

The second is if the I-485 accompanies the national interest I-140, and the extraordinary ability I-140 is approved first, again, USCIS will not transfer the I-485 until the national interest I-140 is adjudicated. If the national interest I-140 retrogresses, meaning the priority date is no longer current, USCIS can still transfer the I-485 to the extraordinary ability I-140 as long as the extraordinary ability I-140 remains current.

Finally, if the I-485 accompanies one or the other of the I-140s, and that I-140 is denied, and the other I-140 remains pending, USCIS may match the I-485 to the pending I-140 as long as the pending I-140 remains current. If this is missed by USCIS, and the I-485 is denied, it may be necessary to file a motion to reopen.

If Concurrent Filing Is Used, and the I-485 is Eligible for Transfer from One I-140 to Another I-140, is there a Process to do so?

No. There is no established process to transfer the I-485 from one I-140 to another. If there is a Request for Evidence (RFE) on the I-140 filed concurrently with the I-485, and another I-140 has been approved and is current, we can request that in the context of the response to the RFE. However, if there is no RFE, it is often extremely difficult and entangling to request such a transfer. While it is possible to make a request, it may take a long time, and may go unheeded by USCIS.

Should a Concurrent I-485 Be Filed When Approval of the I-140 Is Uncertain?

Maybe. In extraordinary ability, outstanding researcher/professor and national interest waiver cases where USCIS is required to make subjective judgments, one may decide to defer filing the I-485. The decision whether or not to file concurrently in these situations may depend on the need for ancillary benefits (EAD and advance parole), the relative strength of the petitions, the aging out of a dependent, or other personal concerns. If an individual’s continued authorized stay in the United States and authorized employment depends on the concurrent filing of an I-485 and EAD, such a filing should be made, but with the understanding that if the I-140 is not approved, the individual will no longer have a legal basis to remain in the U.S.

Are There Any Disadvantages to Concurrent Filing?

The considerations discussed above address most of the risks, advantages, and disadvantages of concurrent filing. One should take into account the financial cost, such as the filing fees and legal fees, associated with the filing of an I-485.

What Happens If the I-140 is Denied?

If the I-140 is denied, USCIS has no basis for approving the related I-485 unless there is a second I-140 pending. In that case, as described above, USCIS may “match” the I-485 to the second I-140, or we can try to alert them and request a transfer to a pending I-140.

However, the denial of the sole I-140 filed by a person will trigger a denial of the related I-485, either simultaneously with the I-140 denial or at a later date. With respect to individuals who have applied for an EAD and are authorized to work pursuant to a pending I-485, denial of the I-485 may result in USCIS revoking this employment authorization, usually through a Notice advising of the revocation. In addition, an individual dependent on the pending I-485 for authorized stay in the U.S. may have to leave if the I-485 is denied.

Does the Concurrent Filing Rule Affect "Portability?"

Maybe. “Portability” permits employment-based I-485 applicants to change jobs with their sponsoring employer, or to change employers, if USCIS does not adjudicate their I-485 within 180 days, as long as the I-485 applicant continues to work in the same or similar occupation. According to the current policy memo guiding adjudications, the clock starts ticking on the 180-day period as soon as the I-485 is appropriately filed with USCIS, not when the I-140 is approved. The safest approach before “porting” would be to wait until the I-140 has been approved, and the I-485 has been pending at least 180 days.

The Eternal Adjustment Applicant

Does a principal lose O-1 status upon applying for adjustment?

Not necessarily. If the O-1 continues to work in a manner commensurate with the O-1 status, then the O-1 maintains O-1 status. On the other hand, if the O-1 works other than for the O-1 petitioner, the O-1 will lose O-1 status.

Does this also hold true for an F or an H-3 who maintains status during the pendency of the adjustment?

Yes, although the F or H-3 may not be able to extend status, the filing of the adjustment application does not terminate lawful nonimmigrant status. If the adjustment is denied, the alien would likely be unable to obtain an F-1 or H-3 visa and would possibly encounter problems seeking readmission because of lack of nonimmigrant intent.

Does an alien have to be in the United States when an advance parole is filed? When approved?

The applicant must have been granted advance parole, unless present in the United States on an H-1B or L, before leaving the United States.

Does it make a difference if the alien departs the United States with a valid advance parole, that advance parole expires, and a new advance parole is issued when the alien is abroad?

Although the regulatory language (8 C.F.R. 245.2 (a)(4)(ii)(B) is not completely clear, there is a good argument under the regulations that as long as the alien left the country after one advance parole had been approved, he should be able to return to the country with a second advance parole document.  However, the instructions to Form I-131 (which are in many respects outdated) state that the application is deemed abandoned by the alien’s departure.

When should an advance parole extension be filed?

The USCIS website allows filing up to 120 days in advance of the expiration of the parole.

What if an alien is working in the US with employment authorization and not maintaining H-1B status? He now needs to travel on an emergency basis. He will not be able to obtain advance parole before he travels. Can his employer file a premium processing H-1B petition and have the employee obtain an H-1B visa overseas in order to return to the US without abandoning the adjustment of status application?

This is a very risky strategy. Logically, the alien should be able to return to the US with the H-1B visa. However, the alien risks a determination by an astute immigration examiner at the time of adjudication of the adjustment of status application that the adjustment was abandoned. The reason for this is that the regulation does not just require that the alien return with the H-1B. Rather the regulation requires that the alien be in lawful H (or L) status at the time of traveling outside the US.

What if the employee was maintaining H-1B status but changed employers using H-1B portability. Can she leave the US and reenter using a previously issued H-1B visa without abandoning her adjustment of status?

The answer should be yes. The reason it is less than completely clear is that the regulatory language requires the alien to be returning to the US “ to resume with the same employer for whom he or she had previously been authorized to work as an H-1B or L-1 nonimmigrant…” 8C.F.R., 245.2 (a) (a)(4)(ii) (c).  The issue is whether the employment with the new employer was “ previously authorized”. Although it would be far better if this were clarified, it would appear that the best reading of the regulation is that employment with the new employer was “authorized” by statute, even though not expressly authorized by any USCIS adjudication.

Does an adjustment applicant need employment authorization to work if the adjustment applicant reenters the United States on advance parole and remains the beneficiary of an unexpired, valid H-1B or L-1A visa?

An adjustment applicant’s otherwise valid and unexpired nonimmigrant employment authorization is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii). If the alien’s H-1 or L-1 employment authorization would not have expired had the alien not left and returned under advance parole, the applicant’s failure to obtain a separate employment authorization document will not negate the alien’s ability to work. It is important to note that this rule only applies to those who have not been employed outside the terms of their H or L.

When should an EAD extension be filed?

USCIS allows filing up to 4 months in advance of expiration. We suggest filing as close as possible to 4 months in advance.

What happens if an adjustment applicant works without an EAD and without valid nonimmigrant status after the filing of the adjustment application?

The USCIS position, as evidenced in its training materials, is that unauthorized employment after the filing of the adjustment application can bar adjustment. CIS will accumulate any unauthorized employment prior to the filing of the adjustment and unauthorized employment after the filing of the adjustment and, if the total exceeds 180 days since the last entry, the applicant will be considered ineligible to adjust and not protected by INA section 245(k). 

What if the adjustment applicant fails to maintain any nonimmigrant status after the filing of the adjustment, but does not work without authorization?

The USCIS position is that, as long as any violation of status was less than 180 days after last entry and before the filing of the adjustment application, INA section 245(k) protects the alien’s eligibility for adjustment of status.

What if an alien has worked without authorization after the filing of the adjustment application, travels using advance parole, returns to the US and continues to engage in unauthorized employment. If the total, including the time before and after travel, exceeds 180 days, is the alien ineligible to adjust?

The prevailing USCIS position appears to be the alien is ineligible to adjust. INA § 245(k) allows an employment-based alien to adjust status as long as the period of unauthorized employment does not exceed 180 days “subsequent to such lawful admission”. Unfortunately, the parole entry was not an admission. As such, the unauthorized employment continues to aggregate. Once it exceeds 180 days, the alien is ineligible to adjust.

Can an alien who enters on advance parole extend H-1B or L status?

An alien who held an unexpired, valid H-1 or L-1 nonimmigrant visa, but who was paroled into the U.S., may apply for an extension of H-1 or L-1 status if there is a valid and approved petition, as long as the alien has not worked outside the H-1 or L-1. If the Service approves the application for an extension, the alien’s parole is terminated.

Is it wise to extend H or L status if an adjustment is pending?

This depends on a number of factors:
  1. cost
  2. easier to travel with H or L as opposed to advance parole (so long as the individual has a valid visa) and there is no need for annual extensions of these documents
  3. there is a limit to the period of stay in H or L; an applicant might reach up this limit while the adjustment is pending, negating any possibility of using the visa if the adjustment is denied
  4. the sponsor employer’s H-1B dependency
  5. if the adjustment application is denied, the applicant will still have H or L status
  6. employment authorization is automatically extended on the filing of an H or L extension; this is not the case with employment and advance parole extensions.
  7. employment authorization and advance parole extensions require name checks that can take a long time
  8. advance parole and employment authorization must be renewed four months before expiration to be safe; the failure to calendar this will result in the loss of these benefits
  9. maintenance of the H or L by the principal will enable a spouse or child who did not file for adjustment, or missed the priority date cut-off, to continue to remain in the United States with the principal. It will also protect the after-acquired spouse by according status as an H-4 or L-2.

What period of time can an H-1B obtain when filing for an extension?

The H-1B can be approved for any period of time remaining on the H-1B plus recover any time spent outside the United States. Moreover, the H-1B can be approved for an additional three years if the I-140 has been approved and the priority date is not current when the H-1B extension is filed, or one year if 365 days have elapsed since the filing of the labor certification or I-140. The I-140 or labor certification must have been pending at least 365 days from the requested start date on the extension.

Is an alien still eligible for the extension if the I-140 has been denied, but an appeal has been filed?

Yes.

Can a principal be the beneficiary of a nonimmigrant visa petition filed by a different sponsor while the principal’s adjustment is pending?

Yes. There is no requirement that the alien be employed by the sponsor on a permanent residence petition. Nevertheless, there is a requirement that the alien have the intention to be employed by the sponsor. This intention can change once the visa petition is approved and the adjustment application has been pending 180 days.

Can an adjustment applicant change to consular processing?

Yes, but both cannot be pending at the same time. The I-824 is treated as a request to withdraw the I-485.

What is the procedure for doing this?

File form I-824. Some posts will create an immigrant visa application with a copy of the receipt notice for Form I-824; however, they will not adjudicate the visa application until they receive the petition from NVC. A DOS cable encourages posts to process cases utilizing the I-797 approval notice of an I-140, a copy of the I-140, a receipt for the I-824 and evidence that the applicant was last resident in the consular post.

Can an adjustment applicant port if the adjustment applicant decides to consular process?

Yes.  As long as the visa petition is approved and the adjustment application was pending for 180 days.

Can an I-485 application be transferred from one I-140 to another I-140?

Generally, if an I-140 is filed seeking to classify a foreign national as an alien of extraordinary ability and a separate I-140 is filed requesting a national interest waiver for the same foreign national, he or she may submit, at the same time or subsequently, an I-485 with one of the I-140 petitions. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.
 
The first caveat is if the I-485 accompanies the extraordinary ability I-140, but the national interest waiver I-140 is approved first, USCIS will not transfer the I-485 to the approved I-140 until the extraordinary ability I-140 has been adjudicated.
 
If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is current, USCIS will usually, but not always, match the pending I-485 to the approved petition. If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is not current, USCIS will not transfer the I-485 to the national interest I-140. USCIS can only transfer the I-485 if a visa number is available for that I-140 petition. Therefore, when the extraordinary ability I-140 is denied, and the national interest I-140 is approved but the priority date is not current, the I-485 will be denied.
 
The second is if the I-485 accompanies the national interest I-140, and the extraordinary ability I-140 is approved first, again, USCIS will not transfer the I-485 until the national interest I-140 is adjudicated. If the national interest I-140 retrogresses, meaning the priority date is no longer current, USCIS can still transfer the I-485 to the extraordinary ability I-140 as long as the extraordinary ability I-140 remains current.
 
Finally, if the I-485 accompanies one or the other of the I-140s, and that I-140 is denied, and the other I-140 remains pending, USCIS may match the I-485 to the pending I-140 as long as the pending I-140 remains current. If this is missed by USCIS, and the I-485 is denied, it may be necessary to file a motion to reopen.

If concurrent filing is used, and the I-485 is eligible for transfer from one I-140 to another I-140, is there a process to do so?

No. There is no established process to transfer the I-485 from one I-140 to another. If there is a Request for Evidence (RFE) on the I-140 filed concurrently with the I-485, and another I-140 has been approved and is current, we can request that in the context of the response to the RFE. However, if there is no RFE, it is often extremely difficult and entangling to request such a transfer. While it is possible to make a request, it may take a long time, and may go unheeded by USCIS.

Can an alien have more than one adjustment of status application pending at the same time? For example, what if two spouses have approved I-140s and both spouses file I‑485s with their approved I-140s and separate I-485s as derivatives of their spouse’s I‑140 adjustments?

Although USCIS discourages such duplicate filings, they are not violative of any law or regulation. However, as a practical matter, multiple adjustment filings may result in confusion regarding multiple biometrics, multiple security clearances, multiple RFEs and possible Service withdrawal or denial of one of the two adjustment applications.

If the principal H-1B enters the United States on advance parole, can the spouse continue to enter the United States on an H-4?

There are two schools of thought on this. One is that the H-4’s status is dependent on the principal’s status; and if the principal is on advance parole, the spouse must also enter on advance parole. The other is that if the spouse has not violated the essential terms of his/her H status, a legal fiction is created that the H status is still valid and thus the H-4 can continue to travel on the H-4.

Does an H-4 lose status as an H-4 if granted EAD?

Only if the H-4 uses the EAD. If the H-4 has the EAD and does not use it, the H-4 maintains H-4 status.

Does this same analysis apply to the L-2?

No. Since the L-2 has employment authorization, employment on the L-2 will not disrupt L-2 status.

If an adjustment application is filed for the principal, and a child or spouse is outside of the United States, can the child or spouse reenter the United States on an H or L visa?

Yes, if the principal is maintaining status on an H-1B or L. 9 FAM 41.53 N 18.2

If the principal filed for adjustment when his/her priority date was current, can a spouse or child later file for adjustment, even if the priority date is not current?

No. The priority date must be current at the time of the filing of the adjustment.

Can an H-4 who has employment authorization travel and reenter on an H-4?

Yes, unless the H-4 has actually taken up employment. The holding of the employment authorization document does not in and of itself alter the H-4’s status.

What if the principal has entered the United States on advance parole?

The answer appears to be that the spouse or child is not entitled to issuance of a derivative nonimmigrant visa unless the principal holds nonimmigrant status in the United States.

If the principal H-1B is in the United States and working outside the parameters of the H-1B with an employment authorization document, can the spouse use the H-4 to travel?

No. If the principal is present in the United States and has not maintained H-1B status, the H-4 is not entitled to that status. 9 FAM 41.53 N 18.2

What can be done to protect the children of the principal adjustment applicant from aging out if they are abroad and will visa process?

File an I-824 with the adjustment application. This will constitute the child’s application for the visa.

Will concurrent filing of the adjustment application and visa petition freeze a child’s age?

If the principal files an I-140 and I-485 concurrently and the beneficiary “child” is in the United States and wishes to adjust with the principal, the filing of an I-485 by the child contemporaneous with the parent’s concurrent filing should protect the child. The child’s I-485 will be pending when the parent’s I-140 is approved; and, assuming the priority date is current, the child’s age will be frozen at the time the I-140 is filed. However, if the priority date is not current when the I-140 is approved, the Child Status Protection Act, which did not anticipate concurrent filing, is rather ambiguous. We believe that the better argument is that the child’s age is protected on the date of filing of the concurrent I-485 irrespective of subsequent quota retrogression.

What if the child was 21 when the adjustment was filed for the principal, is the child eligible to adjust?

Assuming the priority date is current, the child may still be eligible to adjust. Deduct the period of time the I-140 that was filed on behalf of the principal was pending, and subtract this period of time from the child’s age to determine the child’s filing age. The child must still seek to procure residence within one year of the approval of the parent’s I-140.

Does the child have an argument that he is protected by the CSPA if he failed to file for adjustment when his priority date became current, and subsequently the priority date retrogressed for more than a year?

The CSPA itself does not take into account the possibility that a priority date might be current for a one month period and then subsequently retrogress for over a year. The statute contemplates giving the child a one year period to make an application for the visa or adjustment. Thus, one could argue that the period of time that the child could not apply because the priority date retrogressed tolls the year by the period of time that the priority date was unavailable. One would argue that there was impossibility of performance within the one year filing deadline.