Under enormous pressure from litigation, Congress and the public, USCIS announced tonight that it is reopening the application period for adjustment of status applications for employment-based immigrants whose priority dates were current in the original Visa Bulletin for July of 2007.
This announcement provides a new filing opportunity for applicants who were not able to get their applications filed in June. The announcement also says that USCIS will accept all applications already received for the month of July that were properly filed.
Applicants who already have their I-485 filed with USCIS need to do nothing at this point, and USCIS should now begin processing these applications. Applicants who have not yet filed their adjustment of status application will now have until August 17, 2007 to do so, as USCIS has opened a new 30-day filing window. USCIS has also announced that it will continue to honor its pre-July 30 fee schedule for all cases filed during this filing window.
Here are answers to some questions we are hearing:
Which Employees Can Potentially Benefit From The Priority Date Movement?
In order to be able to take advantage of the priority date movement, an employee must be eligible for an immigrant visa. The employee must have either an approved labor certification, or must be able to apply for adjustment of status in one of those categories in which no approved labor certification is necessary (such as outstanding researchers, national interest waivers, and “Schedule A” nurses and physical therapists). Also, any person with a pending labor certification as a professional or skilled worker will be eligible to file for adjustment of status if the labor certification is approved in the next 30 days.
Employees for whom the no “Schedule A” petition has yet been prepared, and those for whom the labor certification process has not yet been initiated, will not benefit from this priority date movement, as there is not enough time to complete the required posting and recruitment in order to get a labor certification approved by the Department of Labor in the narrow window while the priority dates are current.
Also, those employees who are classified as “other workers” (nonprofessional and unskilled workers) were not eligible to file under the original July announcement, and so are not covered by the revised filing period.
What Will Happen To The Application I Filed Already?
We expect that USCIS will accept the fee checks and issues receipts for all applications it received on July 2, 2007. These receipts will not likely be generated for several weeks and possibly months, due to the volume of applications being processed.
How Long Will It To Get A Green Card After Filing This Month?
Processing times are extremely difficult to predict in this scenario; however, we expect that most cases filed in before August 17 will not be processed this fiscal year. We also expect that the priority dates will remain retrogressed in many categories in the coming months, in which case the employee’s I-485 will remain pending. Given the potential demand for immigrant numbers from the tens of thousands of cases already pending and being filed, it is likely to be years before many cases in the third employment based preference (professional and skilled workers) will be approved. Fortunately for those applicants, they will continue to be able to obtain and extend employment authorization documents and advance parole travel documents (or H-1B status, if applicable) for as long as the adjustment application remains pending.
If I Do Not File Before August 17, When Will I Be Able To Re-File?
After the August 17 filing period, the next time any visas will become available is the beginning of the next fiscal year (FY2008). FY2008 begins on October 1, 2007. The State Department will release a Visa Bulletin in mid-September with the priority dates available in October 2007. We will likely not know before September which cases will be able to be filed in October.
Applicants for adjustment of status must have a priority date earlier than the priority date listed as “available” in the Visa Bulletin each month in order for their application to be filed or for a pending application to be approved. To estimate which adjustment of status applications will be able to be filed in October, it is helpful to look a the Visa Bulletin of April 2007 (before the State Department began advancing the priority dates so that USCIS could approve enough cases to use up the available immigrant visa numbers). At that time, some categories were current (including the employment-based first preference for people from all countries and the employment based second preference for people born in all countries except India and China) and some were backlogged (the employment-based third preference was current for priority dates earlier than August 1, 2002, meaning that the labor certification or Schedule A immigrant visa petition had to have been filed prior to August 1, 2002 for the adjustment of status to be granted). The actual priority dates available in October may be earlier or later than the priority dates previously published, given the extraordinary number of applications approved in June by USCIS.
Where can I get further information?
For further information about the new filing deadline, please contact the Firm, and one of our staff will assist you.