Filing EB-2 NIW before July 2012: Current or on Priority Date base

C

computing

New Member
Hello,

I was in the early stage of preparing for EB-2 NIW category application when the July bulletin of US State Department announced retrogression in the EB-2 avaiability from "Current" to "Priority Date of Jan 2009.

My lawyer sent me a memo saying that as applying for change of Status is only possible when visa in that category is immediately available, starting from beginning of July we can't file I485 concurrently with I140. So one way is to expedite the application by filing before the end of June with whatever recommendation letters we have to be able to file concurrently for NIW and Change of Status. My conclusion was that this means that till beginning of July, EB-2 visa availability is Current and that's why we can apply concurrently, hence if we apply our application will be processed on a current availability. I started contacting experts in my list and could in the last 3 days get 8 of them agree to write a letter.

Then today I heard from another lawyer that although by applying before end of June, we can apply for Change of Status as well, but, I140 for NIW won't be processsed immediately and have to wait till Priority Date comes. Considering the requirement of visa being available currently to be able to apply for status change this doesn't seem to be reasonable.

So would you please help me with my confusion? I have a hard time deciding what is the write action now. Whether I should apply normally or file in a fast track by end of June.Would you please answer the following:

- What will happen if I apply before the end of June, in terms of my I140 being processed based on Current availability rather than waiting till Priority Date reaches?
-I read in some lawyers websites that they predict that after a few months EB-2 will return to Current. If I apply after July and when EB-2 is still available on a Priority Date basis, and then later it becomes Current, what will happen to my application?Will it be processed then based on Current availability and immediately?
-If I apply after July while EB-2 visa is still on a Priority Date , without applying for Change of Status, can I later apply for OPT and H1B visa without any impact on that?
- How long on average does processing of Change of Status take?

Finally I know this is a subjective question, but specially those with the same situation as mine, if you could consult with your lawyers, would you share their recommendation on: whether to apply before end of June with an acceptable but probably not a very good package and then get more documents for the time when USCIS potentially issues an RFE? Or to just apply on a normal pace without consideration of the visa availability? (all lawyers of this firm have gone to annual conferene of lawyers and I couldn't talk to any of them after this new announcement, which just added to my stress and confusion).

I highly appreciate any information you can provide.
 
computing said:
Hello,

I was in the early stage of preparing for EB-2 NIW category application when the July bulletin of US State Department announced retrogression in the EB-2 avaiability from "Current" to "Priority Date of Jan 2009.

My lawyer sent me a memo saying that as applying for change of Status is only possible when visa in that category is immediately available, starting from beginning of July we can't file I485 concurrently with I140. So one way is to expedite the application by filing before the end of June with whatever recommendation letters we have to be able to file concurrently for NIW and Change of Status. My conclusion was that this means that till beginning of July, EB-2 visa availability is Current and that's why we can apply concurrently, hence if we apply our application will be processed on a current availability. I started contacting experts in my list and could in the last 3 days get 8 of them agree to write a letter.

Then today I heard from another lawyer that although by applying before end of June, we can apply for Change of Status as well, but, I140 for NIW won't be processsed immediately and have to wait till Priority Date comes. Considering the requirement of visa being available currently to be able to apply for status change this doesn't seem to be reasonable.

So would you please help me with my confusion? I have a hard time deciding what is the write action now. Whether I should apply normally or file in a fast track by end of June.Would you please answer the following:

- What will happen if I apply before the end of June, in terms of my I140 being processed based on Current availability rather than waiting till Priority Date reaches?
-I read in some lawyers websites that they predict that after a few months EB-2 will return to Current. If I apply after July and when EB-2 is still available on a Priority Date basis, and then later it becomes Current, what will happen to my application?Will it be processed then based on Current availability and immediately?
-If I apply after July while EB-2 visa is still on a Priority Date , without applying for Change of Status, can I later apply for OPT and H1B visa without any impact on that?
- How long on average does processing of Change of Status take?

Finally I know this is a subjective question, but specially those with the same situation as mine, if you could consult with your lawyers, would you share their recommendation on: whether to apply before end of June with an acceptable but probably not a very good package and then get more documents for the time when USCIS potentially issues an RFE? Or to just apply on a normal pace without consideration of the visa availability? (all lawyers of this firm have gone to annual conferene of lawyers and I couldn't talk to any of them after this new announcement, which just added to my stress and confusion).

I highly appreciate any information you can provide.
Click to expand...

By filing before the retrogression kicks-in, you will be covered as an "applicant for adjustment" and will be able to get an EAD and AP "Combo Card". You will not be obligated to continue renewing a nonimmigrant visa (although if eligible and have a willing employer (or are a self sponsored nonimmigrant), you could continue to renew if necessary and desired--as a back-up in case the NIW is denied).

USCIS will continue to process the I-140 in a "first in-first out" processing queue. If they can deny it, they will, BUT if they want to approve it but a visa is unavailable they will place it on hold and file it in priority date order and get back to it when a visa becomes available.

As for a less than perfect filing ... you can continue to collect evidence after filing BUT it must pre-date the filing. You must be "eligible at time of filing" and the case must be "approvable when filed" but more evidence may be submitted later. This means: get the letters now and submit them. Any articles already published can still be gathered and submitted later. Verification of things that already happened or facts that exist at time of filing may be submitted later BUT new qualifications that come into existence after filing cannot be considered. So, if you published something new or get an award or earn another degree or get a new grant starting the day after filing the I-140, none of that will count.
 
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BigJoe5 said:
By filing before the retrogression kicks-in, you will be covered as an "applicant for adjustment" and will be able to get an EAD and AP "Combo Card". You will not be obligated to continue renewing a nonimmigrant visa (although if eligible and have a willing employer (or are a self sponsored nonimmigrant), you could continue to renew if necessary and desired--as a back-up in case the NIW is denied).

USCIS will continue to process the I-140 in a "first in-first out" processing queue. If they can deny it, they will, BUT if they want to approve it but a visa is unavailable they will place it on hold and file it in priority date order and get back to it when a visa becomes available.

As for a less than perfect filing ... you can continue to collect evidence after filing BUT it must pre-date the filing. You must be "eligible at time of filing" and the case must be "approvable when filed" but more evidence may be submitted later. This means: get the letters now and submit them. Any articles already published can still be gathered and submitted later. Verification of things that already happened or facts that exist at time of filing may be submitted later BUT new qualifications that come into existence after filing cannot be considered. So, if you published something new or get an award or earn another degree or get a new grant starting the day after filing the I-140, none of that will count.
Click to expand...

BigJoe5-Thank you very much for the detailed and complete answer. There are a few points in your response and I want to make sure I picked them right:

-Based on your answer, my conclusion is that for concurrent filing and for I485 to be processed only availability of visa on the date of filing matters. But for USCIS to approve GC application visa must be available both when filing and approving/issuing. Is that correct?
And in that sense, not only it will affect people who file after State Dep. announcement but those who have applied earlier but their application hasn't been approved.

-you mentioned: "you can continue to collect evidence after filing BUT it must pre-date the filing. " Doeas this apply to recommendation letters? If I can't get enough letters when filing, can I add to them later if the writers only to refer to achievements prior to the date of filing?

And when completing the documents, can we just send them to USCIS as soon as they get ready and not to wait for them to announce RFE? (In order to diminish risk of just directly being denied)

Again highly appreciate the information you provided.
 
computing said:
BigJoe5-Thank you very much for the detailed and complete answer. There are a few points in your response and I want to make sure I picked them right:

-Based on your answer, my conclusion is that for concurrent filing and for I485 to be processed only availability of visa on the date of filing matters. But for USCIS to approve GC application visa must be available both when filing and approving/issuing. Is that correct?
And in that sense, not only it will affect people who file after State Dep. announcement but those who have applied earlier but their application hasn't been approved.

-you mentioned: "you can continue to collect evidence after filing BUT it must pre-date the filing. " Doeas this apply to recommendation letters? If I can't get enough letters when filing, can I add to them later if the writers only to refer to achievements prior to the date of filing?

And when completing the documents, can we just send them to USCIS as soon as they get ready and not to wait for them to announce RFE? (In order to diminish risk of just directly being denied)

Again highly appreciate the information you provided.
Click to expand...

The recommendation letters are NOT as important as you may think. It is the CONTENTS which make specific reference to what you have accomplished and anything that is mentioned in a letter that happened after filing will be discounted. So, while you are not barred from submitting more letters after filing, they may be of less value rather than more if they reveal that you are being praised for anything that happened AFTER filing the I-140.

What is the purpose of these letters in your case? What is the base EB-2 variety you are seeking? Professional or exceptional ability?

Please see: http://www.slideshare.net/BigJoe5/eb2-entrepreneurs-final-hurdle-to-obtain-niw
http://www.slideshare.net/BigJoe5/niw-supplemental-worksheet-medical-research-example-7789896
http://www.slideshare.net/BigJoe5/eb2-niw-entrepreneur-example
and
http://www.slideshare.net/BigJoe5/niw-supplemental-worksheet-medical-research-example

Wait for an RFE before sending anything AFTER filing. It would likely just sit on a shelf or worse---get lost.
 
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