Source:www.immigration-law.com
12/05/2004: USCIS May Abandon Concurrent I-140/EB-485 Filing Procedure
The concurrent I-140 and EB-485 filing system was considered a good idea and initially welcome by the immigrant community when it was announced. The system helped the employment-based green card applicants and their family members to obtain EAD and Advance Parole early. However, the two problems have developed and surfaced with the concurrent filing system afterwards. One is the predicament it has created in conjunction with the implementation of AC 21 180-day rule which allows the I-485 applicants to change employment after 180 days of I-485 filing. The issue was whether the I-485 applicants should be allowed to change employment even before the underlying I-140 petitions had been approved. Such interpretation presented a number of complicated political, policy, and legal issues. The USCIS thus adopted a policy that the change of employment would not be allowed until the I-140 was approved. Since then USCIS has witnessed the backlog in I-140 processings and many I-485 filers have been trapped not being able to change employment even in compelling circumstances such as layoffs. The problem was exaceperated by the announcement and partial implementation of "concurrent I-140/EB 485 adjudication policy." Now the EB-485 became a hostage of not only by I-140 approval precondition policy but also by delay of EB-485 adjudications. Pending EB-485 applications, I-140 have remained unadjudicated in some Service Centers indeed for a prolonged period of time. Some Service Centers followed the concurrent adjudication policy but other Service Centers refused to follow the concurrent adjudication policy. The concurrent filing system thus stirred uproars in the business community as well as the immigrant community. The second problem of the concurrent filing appears to be that it has failed to reduce the backlogs. Moreover, such problem is about to face exasperation due to the U.S. Department of Labor's attempt to commence electronic filing of the permanent labor certification applications (PERM) and backlog reduction procedures, which are expected to dump a huge I-140 and EB-485 concurrent filing load on the USCIS which has already been struggling with its own backlog problems. Politically, it is a nightmare in that the USCIS is under a tremendous stress and pressure from the White House to achieve the Bush's 6-month processing time goals in less than two years from now.
In order to deal with the foregoing "two predicaments," the USCIS is known to working on strategies on the two fronts. The first is the so-called interpretation of the new legal counsel of the USCIS who disagreed with the USCIS interpretation of AC 21 180-day rule. It is a well known information within the immigration lawyers community that the new legal counsel was planning to release his legal memorandum to the effect that the EB-485 applicants would be able to change employment even before approval of the I-140 petitions. The release of this memorandum has been delayed for the obvious reasons. The second is consideration of dropping altogether concurrent filing policy which will also kill the concurrent adjudication policy. Since abandonment of the concurrent filing policy will be able to resolve all the difficult and embarrassing political, legal, and policy problems, unconfirmed sources indicate that the USCIS is seriously considering to drop the concurrent filing procedure. Should this materialize, in the coming year, the employment immigration community is expected to be hit by the two lightening rods: One is retrogression of EB-3 visa numbers for Indians, Chinese, and Fillipinos, and the other is suspension of concurrent filing procedure. Ahhhh........., dizzy.................................................
12/05/2004: USCIS May Abandon Concurrent I-140/EB-485 Filing Procedure
The concurrent I-140 and EB-485 filing system was considered a good idea and initially welcome by the immigrant community when it was announced. The system helped the employment-based green card applicants and their family members to obtain EAD and Advance Parole early. However, the two problems have developed and surfaced with the concurrent filing system afterwards. One is the predicament it has created in conjunction with the implementation of AC 21 180-day rule which allows the I-485 applicants to change employment after 180 days of I-485 filing. The issue was whether the I-485 applicants should be allowed to change employment even before the underlying I-140 petitions had been approved. Such interpretation presented a number of complicated political, policy, and legal issues. The USCIS thus adopted a policy that the change of employment would not be allowed until the I-140 was approved. Since then USCIS has witnessed the backlog in I-140 processings and many I-485 filers have been trapped not being able to change employment even in compelling circumstances such as layoffs. The problem was exaceperated by the announcement and partial implementation of "concurrent I-140/EB 485 adjudication policy." Now the EB-485 became a hostage of not only by I-140 approval precondition policy but also by delay of EB-485 adjudications. Pending EB-485 applications, I-140 have remained unadjudicated in some Service Centers indeed for a prolonged period of time. Some Service Centers followed the concurrent adjudication policy but other Service Centers refused to follow the concurrent adjudication policy. The concurrent filing system thus stirred uproars in the business community as well as the immigrant community. The second problem of the concurrent filing appears to be that it has failed to reduce the backlogs. Moreover, such problem is about to face exasperation due to the U.S. Department of Labor's attempt to commence electronic filing of the permanent labor certification applications (PERM) and backlog reduction procedures, which are expected to dump a huge I-140 and EB-485 concurrent filing load on the USCIS which has already been struggling with its own backlog problems. Politically, it is a nightmare in that the USCIS is under a tremendous stress and pressure from the White House to achieve the Bush's 6-month processing time goals in less than two years from now.
In order to deal with the foregoing "two predicaments," the USCIS is known to working on strategies on the two fronts. The first is the so-called interpretation of the new legal counsel of the USCIS who disagreed with the USCIS interpretation of AC 21 180-day rule. It is a well known information within the immigration lawyers community that the new legal counsel was planning to release his legal memorandum to the effect that the EB-485 applicants would be able to change employment even before approval of the I-140 petitions. The release of this memorandum has been delayed for the obvious reasons. The second is consideration of dropping altogether concurrent filing policy which will also kill the concurrent adjudication policy. Since abandonment of the concurrent filing policy will be able to resolve all the difficult and embarrassing political, legal, and policy problems, unconfirmed sources indicate that the USCIS is seriously considering to drop the concurrent filing procedure. Should this materialize, in the coming year, the employment immigration community is expected to be hit by the two lightening rods: One is retrogression of EB-3 visa numbers for Indians, Chinese, and Fillipinos, and the other is suspension of concurrent filing procedure. Ahhhh........., dizzy.................................................
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