Missed the July 2007 I-485 filing opportunity. Could I expect a remedy?

[Abe1]

You may recall in July/Aug of 2007 USCIS/Dept of State made all EB categories current and everyone with an approved I-140 petition at that time was able to file for I-485. Those who filed for I-485 at that time became eligible for EAD card and their spouses also became eligible for work authorization. Many people who started their permanent residency process in 2005, 2006 and may be even 2007 were able to take advantage of this I-485 filing window because of PERM filings.

Although I have a mid 2004 priority date, I couldn’t apply for I-485 in July/Aug 2007 because my Labor Certification Application (regular filing) was still pending at that time. Subsequently I got the Labor Certification and I-140 approved.

I am wondering if I could request USCIS to extend to me the same benefit that applicants with a later priority date are enjoying. Is it something I can appeal to an immigration board or to an immigration court?

Could someone please advice?

Thanks.

 

[TheRealCanadian]

I am wondering if I could request USCIS to extend to me the same benefit that applicants with a later priority date are enjoying. Is it something I can appeal to an immigration board or to an immigration court?

No, since you had no basis to file an I-140 at that time.

 

[Jackolantern]

I am wondering if I could request USCIS to extend to me the same benefit that applicants with a later priority date are enjoying. Is it something I can appeal to an immigration board or to an immigration court?

Absolutely not. Without an approved labor certification, you were not eligible to file I-140 or I-485 at the time.

 

[susomething]

I narrowly escaped from this situation. My labor was approved in third week July. Filed I-140 and I-485 in rush.

 

[Abe1]

No, since you had no basis to file an I-140 at that time.

I understand I had no legal basis to file for an I-140 at that time. I was not able to file for I-140 or I-485 because my Labor Certification process took more than 3 years. Which is not a fault from my side. People who started the process much later were able to take advantage of PERM and Reduction In Recruiting process. I suppose there are probably a few people like me who got penalized for going through the normal process at the time we filed for Labor Certification. My question is; Will a court or immigration petition board consider our case from a fairness stand point. Otherwise even after being in the country for more than 13 years (over 10 years in H1B) I am looking at the possibility for filing for another H1B. I am seeing people who came to US much later becoming permanent residents and citizens.

 

[Abe1]

Absolutely not. Without an approved labor certification, you were not eligible to file I-140 or I-485 at the time.

I understand I had no legal basis to file for an I-140 at that time. I was not able to file for I-140 or I-485 because my Labor Certification process took more than 3 years. Which is not a fault from my side. People who started the process much later were able to take advantage of PERM and Reduction In Recruiting process. I suppose there are probably a few people like me who got penalized for going through the normal process at the time we filed for Labor Certification. My question is; Will a court or immigration petition board consider our case from a fairness stand point. Otherwise even after being in the country for more than 13 years (over 10 years in H1B) I am looking at the possibility for filing for another H1B. I am seeing people who came to US much later becoming permanent residents and citizens.

 

[akilhere]

Otherwise even after being in the country for more than 13 years (over 10 years in H1B) I am looking at the possibility for filing for another H1B. I am seeing people who came to US much later becoming permanent residents and citizens.

That's the harsh reality of life!

This process is like anything in life. Some get everything easily and some have to struggle for everything!

You just have to hope for things to go your way and that's a sad fact!

 

[TheRealCanadian]

My question is; Will a court or immigration petition board consider our case from a fairness stand point. Otherwise even after being in the country for more than 13 years (over 10 years in H1B) I am looking at the possibility for filing for another H1B. I am seeing people who came to US much later becoming permanent residents and citizens.

Unfortunately for you, no. The law doesn't really concern itself with "fairness" as much as it does with procedure. Legally correct procedure was followed in your case. There is no requirement for an LC to be approved in a particular time frame.

 

[Abe1]

Isn’t this when you seek the help of the court systems?

I am not saying either USCIS or DOL didn’t follow their procedures. I am only asking shouldn’t I be eligible for the EAD Card benefit that applicants with a priority date later than that of my priority date are enjoying; especially when I missed out the opportunity to file for I-485 because of the process delay at DOL.

I know there is no legal basis for me to be given this benefit. But to my wishful thinking; if there is a clear unfairness in the situation, irrespective of what caused it, will or can courts or immigration petition boards intervene to remedy the situation? Or is it that these issues can only be addressed with legislation?

 

[Jackolantern]

The courts can't do anything to help you with this. Allowing you to file I-485 now would violate another law -- the law that prevents USCIS from accepting AOS applications when the visa numbers are not available to you. And allowing you to file retroactive to July 2007 would violate another law -- the one that prevents you* from filing I-140 without an approved labor certification. You can ask Congress to change the law, but good luck with that.


*some individuals such as Schedule A workers can file an I-140 without a labor certification, but not you.

 

[MusicStud1]

You are not alone

I am sailing in the SAME boat as yours. Filed GC in 2004 with regular processing, got labor approved 2 weeks after the July 2007 window closed (Oouch!) and after 9 years being on H1, still waiting for GC to arrive. You cannot do anything about it. Its mere (un)luck!

 

[Abe1]

The courts can't do anything to help you with this. Allowing you to file I-485 now would violate another law -- the law that prevents USCIS from accepting AOS applications when the visa numbers are not available to you. And allowing you to file retroactive to July 2007 would violate another law -- the one that prevents you* from filing I-140 without an approved labor certification. You can ask Congress to change the law, but good luck with that.


*some individuals such as Schedule A workers can file an I-140 without a labor certification, but not you.

I suppose the first law you mentioned was effectively overlooked in July and August 2007 when USCIS allowed applicants to file for I-485 even after DOS visa bulletin (revised July bulletin on July 2, 2007 and August bulletin on July 12, 2007) showed no availability of EB3 visa category.

Irrespective of all that, does courts have the authority to direct USCIS to issue EAD cards on a case by case basis considering the unfairness of the situation? I do not worry much about filing for I-485 if I could get an EAD card to continue my job rather than having to keep on filing for H1B. I suppose that would also allow my spouse to work.

 

[Jackolantern]

I suppose the first law you mentioned was effectively overlooked in July and August 2007 when USCIS allowed applicants to file for I-485 even after DOS visa bulletin (revised July bulletin on July 2, 2007 and August bulletin on July 12, 2007) showed no availability of EB3 visa category.

It wasn't overlooked. What happened was that the all-unavailable bulletin was false; they did not use up all the visa numbers as they claimed to have done. So they were forced to reinstitute the "all-current" bulletin, which was made all-current in the first place because they had severely underutilized the quota in the first 9 months of FY07.

Irrespective of all that, does courts have the authority to direct USCIS to issue EAD cards on a case by case basis considering the unfairness of the situation?

Yes, but only if doing so is consistent with the law, including correcting unlawful acts by USCIS, such as when the I-485s and EADs of several religious workers were wrongfully rejected by USCIS in the past year. However, I can't think of anything you could claim to get an I-485 pending or an EAD approved and not violate the law. A long-delayed labor certification is not a wrongful act that can warrant a retroactive remedy by the courts.