On Sep 29 2020 by William A. Stock

Questions about the October 2020 Visa Bulletin and Applying for Adjustment of Status

The October 2020 Visa Bulletin has been released and USCIS has allowed applicants to use the “Dates for Advanced Filing” chart (or “Chart B”) for the month of October.  Chart B for the October 2020 Visa Bulletin provides substantial forward movement for all categories of employment-based immigrants but provides particularly welcome relief for persons born in India in the EB-2 and EB-3 categories. In fact, the “dates for filing” in the India EB-3 category are substantially more advanced than those in India EB-2. As such, we are receiving many questions about the process for taking advantage of the more-advanced filing date for EB-3 by beneficiaries of EB-2 I-140s. For general information about the concurrent filing of adjustment of status applications and new visa petitions, see posts on the subject here and here.

Processing Questions

Why did the priority dates move forward so suddenly?

Each year, the employment-based immigration system receives any visas numbers that were unused in the prior year in the family-based immigration system. Because coronavirus shut down consulates and limited immigration from abroad, more than 120,000 visas were unused in the family-based system in Fiscal Year 2020.  These numbers are only available in the employment-based system during Fiscal Year 2021, so USCIS and the State Department are requesting applicants to submit applications early in the year so that they can be completed by USCIS before September 30, 2021.

How can I tell whether my priority date is current so my family and I can prepare the I-485 for adjustment of status?

Your priority date is the earliest of three dates: the date your current I-140 was filed; the date the labor certification needed for your current I-140 was filed; or the priority date of any prior approved I-140 (unless USCIS revoked it for fraud), including I-140s for a prior employer or I-140s that were later withdrawn by your prior employer. Once you know that date, look at the October Visa Bulletin on page 5 and see whether your priority date is earlier than the priority date listed under your country of birth, (or your spouse’s country of birth) in either the EB-2 or the EB-3 row (earlier than 1 January 2015 for persons born in India, for example).

Now that my EB-2 or EB-3 priority date is “current” for October, what do I need to do to apply?

If your employer supports the I-485 filings of employees, the law firm will be reaching out by email to invite you to the portal to submit documentation for the I-485. Once the invitation arrives, you will update your personal information, enter additional information required for the I-485 and related applications, and upload your personal documents.  While you are waiting for the portal invitation, there is a list of documents you can gather to be ready to prepare the application at the bottom of this FAQ list.

I have an I-140 approved with a previous employer, but my I-140 with my current employer is pending, and the priority date is current, can I still file the I-485 with my current employer?

Yes! If your current employer’s I-140 is still pending but would be current based on a priority date you have from a prior employer’s I-140, we can now concurrently file your adjustment of status to be matched to your pending I-140.  More detail can be found on our FAQ posts here.

How long do we have to file applications for adjustment of status?

Historically, the Dates for Advance Filing represents the priority date that the State Department expects USCIS to be able to reach with adjudications during the government’s entire fiscal year (October to the following September). Because USCIS needs time to process the applications, however, they have historically allowed applicants to file applications only during the first three or four months of the fiscal year. Because of this historical pattern, we expect applicants will be able to file their applications in October, November, and probably December based on the Dates for Advance Filing published in the October Visa Bulletin. The State Department and USCIS will confirm whether we can use those dates for November when they publish the November 2020 Visa Bulletin in mid-October.

Once I file my application for adjustment of status, can I travel internationally?

Generally speaking, an H-1B, L-1, H-4, or L-2 visa holder can leave the United States while the I-485 is pending without negatively affecting the I-485. Before planning any travel, please review this article and inform the law firm of your travel plans for confirmation that your specific travel plans will not cause you to be stuck abroad or hurt your green card process.

 

Upgrade/Downgrade Questions

I am an Indian National and I have an EB-2 I-140 dated before 1/1/2015 with my employer. Can I take advantage of the EB-3 priority dates?

Yes! As part of filing your adjustment of status, we will concurrently file an I-140 based on your prior labor certification in the EB-3 category. This is possible because any job for a “professional with an advanced degree” (the definition of EB-2) is, by necessity, also a job for a “professional” (the definition of EB-3).

If the EB-3 lines retrogress after I move to EB-3 I-140 downgrade and I-485 filing, can I move back to EB-2 if that date becomes current in the future?

We believe that USCIS will honor priority dates for “downgraded” petitions in the higher priority category if more visas are available in that higher priority category.  More detail can be found in our FAQ post here.

 

Changes of Positions/Locations/Companies

I have an I-140 approved from a previous job at my current employer and now the priority date is current, but I have since changed jobs/moved locations. Can I still take advantage of the previous job’s/location’s I-140?

The I-485 is an application you make, but it must include an I-485J from the employer who filed the I-140 on which you would like the I-485 to be based.  That I-485J must confirm that you are offered the same job that was described in the I-140 (including the same location, the same company, and the same or very similar job duties). If those key aspects of your job changed such that your employer initiated a new PERM application for you, your employer cannot provide an I-485J representing to the government that you are still being offered the same job. So you would not be able to file an I-140 until the new PERM is approved.

I have an I-140 approved with a previous employer and my priority date is current, but my current employer’s green card application is not yet started or PERM is in process, etc., can I still file the I-485 with my current employer?

The I-485 is an application you make, but it must include an I-485J from the employer who filed the I-140 on which you would like the I-485 to be based.  That I-485J must confirm that you are offered the same job that was described in the I-140 (including the same location, the same company, and the same or very similar job duties). If you have changed jobs to a new employer, then by filing an I-485J you and your previous employer would be saying to the government that you and they intend for you to resume that position. You should carefully consider whether you can make that representation to the government. If the I-485J were later determined by the government to be false, you could lose your green card, be fined, or even go to jail. If you cannot file an I-485J because your current employer has not yet obtained a certified PERM for your current position, it may be most prudent to wait and file your I-485 in the future once a PERM filed by the company is approved.

 

What You Can Do Now

What documents should I gather for my I-485 application?

  • Your civil documents, including your birth certificate, and if applicable, the birth certificates of your spouse and your children, plus your marriage certificate and any divorce certificates or death certificates that show your prior marriages were legally ended.
  • Your immigration history documents, including any and all Notices of Action, Form I-797 for prior H or L status; Forms I-20 or DS-2019 for prior student or exchange visitor status; your passports; and your current I-94 record and travel history from https://i94.cbp.dhs.gov/I94/#/home.
  • Passport-style photographs of each family member (two for the I-485; six if also applying for a work permit and travel document).
  • A medical examination on Form I-693 from a USCIS approved doctor: you can obtain a list of USCIS-authorized doctors near you with the website. https://my.uscis.gov/findadoctor. You are NOT required to have a medical examination in order to file the application; however, filing the application with a medical examination may expedite the adjudication of your application by USCIS. If possible before October 22, please obtain a medical examination before we file.
  • A tax transcript for your prior 3 years tax returns, from https://www.irs.gov/individuals/get-transcript.
  • A credit report from https://www.usa.gov/credit-reports.
  • Proof health insurance, such as your most recent Form 1095-B, Health Coverage or Form 1095-C, Employer-Provided Health Insurance Offer (provided each year for tax filing).

Our firm has committed to filing hundreds of I-485 adjustment of status applications for current clients during the months of October and November. Because of our need to prioritize existing clients, we are not able to accept new clients for I-485 filings during October and November.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2020 Klasko Immigration Law Partners, LLP.  All rights reserved. Information may not be reproduced, displayed, modified or distributed without the express prior written permission of Klasko Immigration Law Partners, LLP.  For permission, contact info@klaskolaw.com.