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As we reported on June 13, the U.S. Department of State (DOS) announced that day that nearly all employment-based immigrant categories will be current starting on July 1, with the exception of "other workers." When a category is listed as current, a foreign national may apply for an immigrant visa abroad or submit an application for adjustment of status on the basis of an approved I-140 immigrant worker petition, or concurrently file an adjustment application with a new or pending I-140 petition.
DOS's decisions on priority date currency are based on information about visa demand that it receives from U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL). It appears that, to date, visa demand for Fiscal Year (FY) 2007 has been less than previously projected by agencies, and DOS officials brought priority dates to current status in an effort to maximize use of visas available for this fiscal year, which ends on September 30. Apparently, thousands of otherwise approvable adjustment of status cases are being held up because of security clearances, a wild card that the agencies did not consider sufficiently when making its projections earlier in the fiscal year.
Predictions for the Near Term
Though the principal employment-based categories are current for July, future retrogression is possible later this fiscal year, particularly if demand for immigrant visas increases substantially. Visa numbers can retrogress in the middle of a month and become unavailable without prior notice. If there is a mid-month retrogression, USCIS could elect to stop accepting adjustment applications. While this is unlikely to occur in July 2007, it becomes more and more possible as the fiscal year progresses.
Note that filing an adjustment of status case does not guarantee the issuance of a green card during this fiscal year, and it is expected that few cases filed now will be processed to completion in the near future. Adjustment cases that are not completed before any future retrogression will be held in abeyance until priority dates again become current. Having an adjustment on file, even if the case is in abeyance, allows for eligibility of work authorization and advance parole, and may be particularly critical in circumstances where there are children who may reach the age of 21 during the process.
In this document, we will briefly cover some key issues that this new development raises, including some nuts and bolts adjustment of status questions, the impact on nonimmigrant classifications, and special considerations for families with children who may reach the age of 21 during the application process.
Adjustment of Status: The Process in Brief
The adjustment of status process is relatively complex. The process begins with the filing of Form I-485, Application to Register Permanent Residence or Adjust Status, which is submitted with several other forms and supporting documents. Separate applications must be submitted for each family member filing for adjustment of status. An applicant for adjustment of status must be in the United States in order to be eligible to file. Overseas spouses of adjustment applicants should therefore be encouraged to enter or reenter the United States as soon as possible, and certainly in advance of any future visa number retrogression, in order to be included in the principal's adjustment application.
In addition to requests for work and travel authorization, each application normally includes a biographical information form, birth certificate, photographs, medical examination report, passport pages, and other documentation. Evidence of marriage may be required in some circumstances and a copy of an approved labor certification and updated job letter, among other documents, are required in most adjustment of status cases based on an employment-based petition. Later in the process, applicants for adjustment of status must have fingerprints taken at an application support center (ASC) and are also subjected to an assortment of background and name checks. The exact requirements may vary based on the type of case being filed, the age of the applicant, and other circumstances.
Adjustment of Status v. Consular Processing
Most companies and their foreign national employees choose to use the adjustment of status process over immigrant visa processing at a consulate abroad. Applicants for adjustment of status are faced with the disadvantage of longer processing times, but the advantages of being able to remain in the United States and work by applying for an employment authorization document (EAD). An adjustment applicant may also apply for advance parole if travel needs arise; note that adjustment applicants who are traveling abroad must have an advance parole document in hand before departing the United States. These documents also usually take 90 days to process, but it is probable that with the onslaught of filings, processing times for EADs and advance parole may increase. EADs are required by regulation to be processed in 90 days, though USCIS often takes somewhat longer to issue these documents.
H-1B and L-1 nonimmigrants may maintain H or L status while their adjustment of status applications remain pending, and they and their dependents may also travel pursuant to these classifications, but should always make sure that issues of visa and passport validity are addressed prior to departing the United States. The immigration agencies have developed special policies concerning the impact of using advance parole or an EAD on previously granted H-1B or L-1 status.
In general, processing times for immigrant visa applications at U.S. consular posts are shorter than those for applications for adjustment of status. Note, however, that consular processing is subject to its own set of complex procedures and requirements. In the past, DOS has provided streamlined procedures for moving ahead more quickly with an immigrant visa case, circumventing the usual procedure administered by the National Visa Center that requires a series of steps that take place over a several month period.
The strongest argument for utilizing adjustment of status, therefore, is that it enables applicants (including spouses and children) to remain in the United States as the process unfolds, and obtain employment authorization and advance parole, even if cut-off dates are re-imposed.
Concurrent Filing and Premium Processing
In nearly all cases, concurrent filing of immigrant visa petitions with applications for adjustment of status can obviate problems caused by future visa retrogression and may also speed up the green card process. Even if priority dates retrogress after filing, the I-485 will be placed in abeyance and remain pending, although it cannot be approved until the priority date is current again. Fortunately, extensions of work authorization and advance parole may be obtained during this period.
In some circumstances, it may be advisable to file I-140s by premium processing, if such processing is available for the employment-based immigrant category under which the visa petition will be filed. USCIS's regular processing times are unpredictable and petitions often are not adjudicated on a first-in, first-out basis. Requesting premium processing of an I-140 may hasten the issuance of an approval and may also increase the possibility that an adjustment application could be approved and an immigrant visa number captured prior to the end of the current fiscal year or before any future visa retrogression. Again, while it is unlikely that adjustments filed now will be approved before the end of the fiscal year, the erratic nature of adjudications and certain "best case scenarios" may allow for a quicker result. Such a best case scenario might include the quick approval an I-140 petition, quick up-front processing of biometrics, and an extremely fast turnaround time on security checks.
Aging Out Children
Children may lose their eligibility to obtain permanent residence as dependents of their parents on their 21st birthday, though "aging out" is somewhat obviated by the Child Status Protection Act (CSPA). In its simplest terms, the CSPA allows the time that the I-140 immigrant petition was pending to be subtracted from the child's age on the date that the I-140 is approved and an immigrant visa becomes available (whichever is later). If the calculation results in a fictional age below 21, the beneficiary is eligible for adjustment of status (as long as the adjustment application can be and is filed within one year of eligibility). For employment-based categories with no visa backlog, the CSPA calculation essentially "freezes" the child's age on the date the I-140 is filed. For backlogged visa categories, the result is more difficult to determine, and the legislation was not geared to protect against visa retrogression.
In most instances, therefore, concurrently filing the I-140 and I-485 and requesting premium processing would present the lowest risk strategy when a potentially aging out child is involved. Assuming that visa numbers remain current long enough for the approval of the I-140, the child should remain protected throughout the process, even if ultimate I-485 approval is years away. There is always a risk of retrogression prior to the approval of the I-140, and there may be a small class of cases for which a longer I-140 processing period might have trumped an age-out situation. This is very difficult to predict and case-by-case analysis is critical. Given the benchmark of the May Visa Bulletin, where visa backlogs were several years long, foreign nationals with teenage children should be particularly cognizant of the need to move quickly with permanent residence cases.
Nonimmigrant Visa Extension After the Filing of an Adjustment of Status Application
H-1B professionals filing for permanent residence may obtain extensions beyond the six-year time limit under two circumstances: (1) where labor certifications or I-140 petitions have been pending for at least 365 days; or (2) where an H-1B professional has an approved I-140 and is otherwise eligible for adjustment of status but for the availability of a visa number. With priority dates for employment-based categories becoming current in July, it is not yet clear how USCIS will treat these cases. Such H-1B extensions should be filed before July 1, if possible, since USCIS could decide not to accept these applications once priority dates become current. In the past, we have observed that USCIS has approved these extension requests, but it is not clear whether the agency will do so at this time, given the potentially high volume of such requests. Some at USCIS have posited that individuals who file adjustments may obtain employment authorization and advance parole for travel, but in making this statement, officials are not fully acknowledging that both application types usually take at least 90 days to adjudicate.
Though H-1B and L-1 nonimmigrants may continue to extend their status in the United States while their adjustment of status applications remain pending, foreign nationals in other nonimmigrant classifications must obtain EADs and advance parole. In most instances, as a matter of policy, the government has allowed that work authorization pursuant to a previously approved nonimmigrant petition may continue until an EAD is received. With the exception of H-1B and L-1 nonimmigrants and their dependents, however, travel outside the United States after an adjustment of status application is pending is deemed abandonment of the adjustment unless an advance parole document is in hand prior to departure.
Copyright © 2007 by Fragomen, Del Rey, Bernsen & Loewy, LLP
DOS's decisions on priority date currency are based on information about visa demand that it receives from U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL). It appears that, to date, visa demand for Fiscal Year (FY) 2007 has been less than previously projected by agencies, and DOS officials brought priority dates to current status in an effort to maximize use of visas available for this fiscal year, which ends on September 30. Apparently, thousands of otherwise approvable adjustment of status cases are being held up because of security clearances, a wild card that the agencies did not consider sufficiently when making its projections earlier in the fiscal year.
Predictions for the Near Term
Though the principal employment-based categories are current for July, future retrogression is possible later this fiscal year, particularly if demand for immigrant visas increases substantially. Visa numbers can retrogress in the middle of a month and become unavailable without prior notice. If there is a mid-month retrogression, USCIS could elect to stop accepting adjustment applications. While this is unlikely to occur in July 2007, it becomes more and more possible as the fiscal year progresses.
Note that filing an adjustment of status case does not guarantee the issuance of a green card during this fiscal year, and it is expected that few cases filed now will be processed to completion in the near future. Adjustment cases that are not completed before any future retrogression will be held in abeyance until priority dates again become current. Having an adjustment on file, even if the case is in abeyance, allows for eligibility of work authorization and advance parole, and may be particularly critical in circumstances where there are children who may reach the age of 21 during the process.
In this document, we will briefly cover some key issues that this new development raises, including some nuts and bolts adjustment of status questions, the impact on nonimmigrant classifications, and special considerations for families with children who may reach the age of 21 during the application process.
Adjustment of Status: The Process in Brief
The adjustment of status process is relatively complex. The process begins with the filing of Form I-485, Application to Register Permanent Residence or Adjust Status, which is submitted with several other forms and supporting documents. Separate applications must be submitted for each family member filing for adjustment of status. An applicant for adjustment of status must be in the United States in order to be eligible to file. Overseas spouses of adjustment applicants should therefore be encouraged to enter or reenter the United States as soon as possible, and certainly in advance of any future visa number retrogression, in order to be included in the principal's adjustment application.
In addition to requests for work and travel authorization, each application normally includes a biographical information form, birth certificate, photographs, medical examination report, passport pages, and other documentation. Evidence of marriage may be required in some circumstances and a copy of an approved labor certification and updated job letter, among other documents, are required in most adjustment of status cases based on an employment-based petition. Later in the process, applicants for adjustment of status must have fingerprints taken at an application support center (ASC) and are also subjected to an assortment of background and name checks. The exact requirements may vary based on the type of case being filed, the age of the applicant, and other circumstances.
Adjustment of Status v. Consular Processing
Most companies and their foreign national employees choose to use the adjustment of status process over immigrant visa processing at a consulate abroad. Applicants for adjustment of status are faced with the disadvantage of longer processing times, but the advantages of being able to remain in the United States and work by applying for an employment authorization document (EAD). An adjustment applicant may also apply for advance parole if travel needs arise; note that adjustment applicants who are traveling abroad must have an advance parole document in hand before departing the United States. These documents also usually take 90 days to process, but it is probable that with the onslaught of filings, processing times for EADs and advance parole may increase. EADs are required by regulation to be processed in 90 days, though USCIS often takes somewhat longer to issue these documents.
H-1B and L-1 nonimmigrants may maintain H or L status while their adjustment of status applications remain pending, and they and their dependents may also travel pursuant to these classifications, but should always make sure that issues of visa and passport validity are addressed prior to departing the United States. The immigration agencies have developed special policies concerning the impact of using advance parole or an EAD on previously granted H-1B or L-1 status.
In general, processing times for immigrant visa applications at U.S. consular posts are shorter than those for applications for adjustment of status. Note, however, that consular processing is subject to its own set of complex procedures and requirements. In the past, DOS has provided streamlined procedures for moving ahead more quickly with an immigrant visa case, circumventing the usual procedure administered by the National Visa Center that requires a series of steps that take place over a several month period.
The strongest argument for utilizing adjustment of status, therefore, is that it enables applicants (including spouses and children) to remain in the United States as the process unfolds, and obtain employment authorization and advance parole, even if cut-off dates are re-imposed.
Concurrent Filing and Premium Processing
In nearly all cases, concurrent filing of immigrant visa petitions with applications for adjustment of status can obviate problems caused by future visa retrogression and may also speed up the green card process. Even if priority dates retrogress after filing, the I-485 will be placed in abeyance and remain pending, although it cannot be approved until the priority date is current again. Fortunately, extensions of work authorization and advance parole may be obtained during this period.
In some circumstances, it may be advisable to file I-140s by premium processing, if such processing is available for the employment-based immigrant category under which the visa petition will be filed. USCIS's regular processing times are unpredictable and petitions often are not adjudicated on a first-in, first-out basis. Requesting premium processing of an I-140 may hasten the issuance of an approval and may also increase the possibility that an adjustment application could be approved and an immigrant visa number captured prior to the end of the current fiscal year or before any future visa retrogression. Again, while it is unlikely that adjustments filed now will be approved before the end of the fiscal year, the erratic nature of adjudications and certain "best case scenarios" may allow for a quicker result. Such a best case scenario might include the quick approval an I-140 petition, quick up-front processing of biometrics, and an extremely fast turnaround time on security checks.
Aging Out Children
Children may lose their eligibility to obtain permanent residence as dependents of their parents on their 21st birthday, though "aging out" is somewhat obviated by the Child Status Protection Act (CSPA). In its simplest terms, the CSPA allows the time that the I-140 immigrant petition was pending to be subtracted from the child's age on the date that the I-140 is approved and an immigrant visa becomes available (whichever is later). If the calculation results in a fictional age below 21, the beneficiary is eligible for adjustment of status (as long as the adjustment application can be and is filed within one year of eligibility). For employment-based categories with no visa backlog, the CSPA calculation essentially "freezes" the child's age on the date the I-140 is filed. For backlogged visa categories, the result is more difficult to determine, and the legislation was not geared to protect against visa retrogression.
In most instances, therefore, concurrently filing the I-140 and I-485 and requesting premium processing would present the lowest risk strategy when a potentially aging out child is involved. Assuming that visa numbers remain current long enough for the approval of the I-140, the child should remain protected throughout the process, even if ultimate I-485 approval is years away. There is always a risk of retrogression prior to the approval of the I-140, and there may be a small class of cases for which a longer I-140 processing period might have trumped an age-out situation. This is very difficult to predict and case-by-case analysis is critical. Given the benchmark of the May Visa Bulletin, where visa backlogs were several years long, foreign nationals with teenage children should be particularly cognizant of the need to move quickly with permanent residence cases.
Nonimmigrant Visa Extension After the Filing of an Adjustment of Status Application
H-1B professionals filing for permanent residence may obtain extensions beyond the six-year time limit under two circumstances: (1) where labor certifications or I-140 petitions have been pending for at least 365 days; or (2) where an H-1B professional has an approved I-140 and is otherwise eligible for adjustment of status but for the availability of a visa number. With priority dates for employment-based categories becoming current in July, it is not yet clear how USCIS will treat these cases. Such H-1B extensions should be filed before July 1, if possible, since USCIS could decide not to accept these applications once priority dates become current. In the past, we have observed that USCIS has approved these extension requests, but it is not clear whether the agency will do so at this time, given the potentially high volume of such requests. Some at USCIS have posited that individuals who file adjustments may obtain employment authorization and advance parole for travel, but in making this statement, officials are not fully acknowledging that both application types usually take at least 90 days to adjudicate.
Though H-1B and L-1 nonimmigrants may continue to extend their status in the United States while their adjustment of status applications remain pending, foreign nationals in other nonimmigrant classifications must obtain EADs and advance parole. In most instances, as a matter of policy, the government has allowed that work authorization pursuant to a previously approved nonimmigrant petition may continue until an EAD is received. With the exception of H-1B and L-1 nonimmigrants and their dependents, however, travel outside the United States after an adjustment of status application is pending is deemed abandonment of the adjustment unless an advance parole document is in hand prior to departure.
Copyright © 2007 by Fragomen, Del Rey, Bernsen & Loewy, LLP
