Event Date: Mar 05 - 08, 2021
Post Student Years: 2021 Immigration Options – Pennsylvania State University
William A. Stock will be presenting post-graduation options to Penn State international students on Friday, March 5, and Monday, March 8, 2021. He will be covering immigration options for students after graduation.
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.
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 at www.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 $700. If you file more than one I-140, you will need to pay the $700 with each petition. The filing fee for the I-485, including employment authorization and travel document applications, is $1,225. If you are including spouse or children fourteen years of age or older, they will also need to pay the $1,225. For children under 14, the filing fee is $750. 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)
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.
H-1B Nonimmigrant Status For Professionals
Who may obtain H-1B status?
H-1B nonimmigrant status is available for individuals who are coming into the United States temporarily to perform services as a professional in a specialty occupation. Nonimmigrants who are currently in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a U.S. employer on behalf of the intended employee.
What is a specialty occupation?
A specialty occupation is defined as one that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree (or foreign equivalent). Examples of specialty occupations include accountant, computer analyst, engineer, scientist, and architect.
What is involved in applying for H-1B status?
A Labor Condition Application (LCA) is submitted online with the U.S. Department of Labor (DOL). Upon receipt of the certified LCA, the employer must then file the Form I-129, Petition for Nonimmigrant Worker, with the H Supplement, Data Collection, supporting documentation, and a copy of the signed and certified LCA with United States Citizenship and Immigration Services (USCIS). Upon approval, the employee may apply for an H-1B visa at a U.S. Consulate, or will be granted a change of status if they are in status in the US.
What are the filing fees for H-1B status?
The filing fee is U.S. $460. Employers must also pay a $1500 ($750 for employers with 25 employees or less) “U.S. Worker Training Fee” to Department of Homeland Security for the initial petition they file and for the first extension they file on behalf of a particular employee. Employers are also required to pay a $500 “Anti-Fraud Fee” for the initial petition filed on behalf of a particular employee. Finally, if faster adjudication is desired, USCIS provides an option to pay an extra fee of $1,410 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.
What documentation is required to file a petition for H-1B status?
The following documentation is required:
- An approved LCA from the DOL.
- Documentation that the job qualifies as a specialty occupation.
- A copy of the individual’s U.S. degree (bachelor, master or Ph.D.) and/or a foreign degree with evidence that it is equivalent to a U.S. bachelor’s degree or higher. (A combination of education, specialized training, or experience that is equivalent to a U.S. bachelor’s degree may be submitted to meet this requirement.)
- A copy of any required license to practice the occupation in the state of intended employment.
How may an individual determine if a foreign degree is equivalent to a U.S. degree?
An individual may request an evaluation from a reputable credentialing agency.
Is there a certain wage that must be paid to an H-1B employee?
Yes. The wage paid to an H-1B employee must be the higher of 1) the “prevailing wage” (generally, the average wage for the occupation in the geographic area in which the employee will be employed, or the wage set by a union contract for the position) or 2) the “actual wage” (the wage paid by the employer to other employees in the occupation with similar qualifications).
How does an employer determine the prevailing wage?
An employer may request a prevailing wage determination from the State Employment Service Agency (SESA) or may rely upon wage data from an independent survey if the survey meets the Department of Labor requirements.
May an H-1B employee work part-time?
Yes. An H-1B employee may work part-time if the employer petitioned for part-time employment and all other H-1B requirements are met.
How long does this petition process take?
It may take from 6 to 16 weeks to complete the petition process if all of the required documentation was filed with the petition. USCIS provides an option to pay an extra fee of $1000 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.
Are there any times of the year when new H-1B visas are unavailable?
Yes. In recent years, the quota or “cap” for H-1B visas has been reached as early as mid-May. When the cap is reached, no individual may obtain an H-1B until October 1 of the following fiscal year unless the individual is already in H-1B status and seeking an extension, change of employer, or addition of employer. H-1B petitions may be filed as soon as six months ahead of time, or on April 1 for an October 1 start date.
May an H-1B individual work for more than one employer?
An H-1B individual may work for more than one employer if each employer has properly filed an H-1B petition. All employees after the first H-1B employer can allow the employee to commence employment after the filing of the new H-1B petition.
How long may an individual remain in H-1B status?
In most cases, an individual may remain in H-1B status for a maximum of six years. The initial petition may be approved for up to three years, and subsequent requests for extensions may be approved for up to a maximum of six years. The six years cannot be extended by changing employers. In certain limited situations, the individual can obtain H-1B extensions beyond six years while a permanent resident case is pending.
What happens if the employment is terminated before the employee’s H-1B status expires?
If the employer terminates the employment for any reason and before the approved expiration date, the employer is responsible for notifying USCIS and providing return transportation of the employee to his or her last place of foreign residence. In this event, the employee loses legal status and may be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf on a timely basis, or is able to obtain a different nonimmigrant status.
May an employee in H-1B status travel outside of the U.S.?
Yes, an employee in H-1B status may travel if the H-1B status is valid and he or she has a valid H-1B visa in the passport. If the employee does not have a valid H-1B visa, then the employee must obtain an H-1B visa abroad.
May an employee in H-1B status with a pending extension travel outside of the U.S.?
Yes, an employee in H-1B status with a pending extension may travel outside of the U.S. However, if the current valid H-1B status expires while the employee is abroad, then the individual must remain abroad until the extension is approved and also must obtain a valid visa before returning to the U.S.
May an individual in the U.S. in a nonimmigrant visa status change to H-1B without leaving the U.S.?
Yes, if he or she meets all of the criteria for H-1B status and is in valid nonimmigrant status.
How may an individual in a valid nonimmigrant status obtain or extend the validity of the visa in his or her passport?
Generally, individuals wishing to apply for nonimmigrant visas must make a personal appearance before a U.S. consular officer at a U.S. Embassy or Consulate outside of the U.S. Most applicants apply in their home country while visiting there after changing status in the United States. In certain instances, an individual may have his or her visa issued in Canada or Mexico, or in another country than his or her home country.
What happens if an H-1B wants to switch employers?
If an H-1B nonimmigrant wants to switch employers, the new employer must file a petition for H-1B status with USCIS. The individual may commence work for the new employer when the new H-1B petition is filed. This only applies to employees already granted H-1B status with another employer.
What happens if an H-1B employee changes positions but remains with the same employer?
Unless the change in position is an insignificant change, a new LCA and H-1B petition will have to be filed.
What happens if the employer transfers the H-1B employee to another location?
In most cases, a new LCA and H-1B petition will have to be filed. There are some exceptions including if the relocation is not a permanent relocation but a short-term transfer.
Must an employer under take any specific recruitment for U.S. workers prior to filing an H-1B petition?
No, unless the employer has been found to be a willing violator of the LCA regulations.
What is the immigration status of an H-1B employee’s family in the U.S.?
A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to H-4 status. They may not accept employment in that status, but may study in the U.S. If the spouse is eligible for a different status than H-4 (including H-1B), the spouse may elect to enter the U.S. in that status rather than entering as an H-4. Spouses should note that an offer of employment from a U.S. employer is required in order to obtain most types of work-authorized nonimmigrant status.
May a spouse and/or dependent minor children in H-4 status obtain employment authorization?
Some H-1B spouses are eligible for employment authorization once the H-1B spouse has made it part of the way to permanent residence (a “green card”) through an employer. Spouses in H-4 status are not eligible to obtain employment authorization until the H-1B spouse has an approved I-140, Immigrant Visa Petition, in a category for which there is a backlog of immigrant visa processing, or until the H-1B spouse has completed six years in H-1B status and is able to obtain a further extension of his or her H-1B status. Children in H-4 status are not eligible for employment authorization.
May a spouse and/or dependent minor children in H-4 status obtain a Social Security Card?
Only individuals in H-4 status who also have employment authorization are eligible to obtain Social Security Cards. Other individuals in H-4 status may apply for a Taxpayer Identification Number (ITIN) in some circumstances. This application is filed with the U.S. Internal Revenue Service (IRS).
Hiring International Students
Isn’t it illegal to hire international students because they do not have a green card?
No. Federal regulations permit the employment of international students on F-1 and J-1 visas within certain limits. These visas allow students to work in jobs related to their major fields of study. F-1 students can work on “practical training.” J-1 students may work on “academic training.”
Even if it’s legal to hire international students, won’t it cost a lot of money and involve a lot of paperwork?
No. The only cost to the employer hiring international students is the time and effort to interview and select the best candidate for the job. The international student office handles the paperwork involved in securing the work authorization for F-1 and J-1 students. In fact, a company may save money by hiring international student because the majority of them are exempt from Social Security (FICA) and Medicare tax requirements.
How long can international students work in the United States with their student visas?
F-1 students are eligible for curricular practical training (up to 12 months – such as co-op or internship) before completing their studies, as well as an additional 12 months of optional practical training, either before or following graduation, or a combination of the two. However, if they work full-time for one year or more during curricular practical training, they are not eligible for optional practical training. Students with a J-1 visa are usually eligible to work up to 18 months following graduation, or 36 months for postdoctoral fellows. They may also be eligible to work part-time during their program of study.
Don’t international students need work authorization before I can hire them?
No. International students must have the work authorization before they begin actual employment, but not before they are offered employment. In fact, many J-1 students must have a written job offer in order to apply for work authorization. Many F-1 students will be in the process of obtaining work authorization while they are interviewing for employment. Students can give employers a reasonable estimate of when they expect to receive work authorization.
What does the work authorization look like?
For optional practical training, F-1 students receive from United States Citizenship and Immigration Services (USCIS) an Employment Authorization Document (EAD), a small photo identity card that indicates dates for which they are permitted to work. For curricular practical training, F-1 students receive authorization from school (NOT from USCIS) on the student’s Form I-20. J-1 students receive work authorization in the form of a letter issued by their institutions.
What if I want to continue to employ international students after their work authorization expires?
With a bit of planning ahead, an employer can hire international students to continue to work for them in the H-1B visa category for a total of six years (authorization is granted in two three-year periods). The H-1B is a temporary working visa for workers in a “specialty occupation.” The application procedure to the USCIS is straightforward. The job must meet two basic requirements:
- The salary must meet the prevailing wage as defined by the Department of Labor, and
- A bachelor’s degree or higher is a minimum normal requirement for the position.
Doesn’t an employer have to prove that international students are not taking jobs from a qualified American?
No. American employers are not required to document that a citizen of another country did not take a job from a qualified American if that person is working under a F-1, J-1 or H-1B visa. Employers may be required to document that they did not turn down a qualified American applicant for the position only when they wish to hire foreign citizens on a permanent basis and sponsor them for permanent resident status (a “green card”).