Regression of EB-3 Priority Dates for India, China, & Philippines in January and Points to Remember
- In the Visa Bulletin for December 2004, the Department of State reconfirmed that starting January 2005, there would be visa cut-off dates for EB-3 category for India, China, and Philippines. Unconfirmed sources indicate that the regression is likely very steep. People may want to know what this means.
- The USCIS will accept until the end of December 2004 the stand-alone I-485 applications and concurrent I-140/I-485 applications even if the visa number will not be available under the January 2005 Visa Bulletin inasmuch as the application is physically receipted by the agency. The USCIS has yet to release its policy but it is likely that pending the visa number availability and adjudication of I-485 applications, USCIS may continue to issue EAD and Advance Parole to these applicants. It is thus critically important that people file concurrent applications before the end of 2004 even if there is some deficiency in terms of documentation.
- The I-485 applications which are pending as of January 1, 2005 will go into a long dormant stage within the agency until certain date which is close to the date when the visa number will become available for him or her.
- The long wait always accompanies the risk of losing the job with the sponsoring employer for whatever reasons. The AC 21 Act Section 106(c) allows I-485 applicants to change employment without losing the green card opportunity inasmuch as the job is similar or identical occupational classification and the change happens after 180 days of filing of I-485 applications. However, as reminded repeatedly on this site, AC 21 180-day rule is seriously crippled by the two rules of the USCIS. One is the so-called Yates Memo which interpreted that I-140 approval is precondition for 180-day change of employment provision. Worse yet, the second rule, which is in fact a procedural policy rather than a rule, requires the Service Centers to adjudicate concurrently filed I-140 and I-485 "concurrently." If this practice continues on and after January 1, 2005, the I-140 petitions will remain unadjudicated until the visa number becomes available for him/her. On the surface, the USCIS may have two options to deal with the predicaments: One is to announce as soon as possible reversing the Yates memo and allowing the I-485 applicants to change employer even before the I-140 is approved. The second option is for the USCIS quickly abandon the "concurren adjudication" policy and adjudicate I-140 petitions independently from the concurrently filed I-485 applications. In the second option, the USCIS should also reduce the I-140 processing times substantially. Which will be a better option? Considering the fact that the USCIS may have to stop adjudicating I-140 petitions for those aliens whose visa priority dates are a "far apart" from the visa availity date for the purpose of effective allocation and utilization of its limited adjudication resources, the second option of abandoning "concurrent adjudication" does not seem to give a right answer. The right answer and solution lie with the first option of reversing the Yates memo. In fact, the USCIS may have no other alternative to deal with the forthcoming predicament! We urge the USCIS to release the so-called USCIS General Counsel's memo which is at the stage of draft reversing the Yates memo.
- Those who have yet to reach the USCIS proceedings should be more mindful of the impact of his/her decision on pending labor certification application or immigrant petition in terms of the consequences of such decision on the loss of priority date. Retaining and preserving priority may be as precious as prompt approval of labor certification application. People in this category should get to learn the rules of priority date and retention of priority date. In parallel with the retension rule, consular processing tends to be riskier when priority dates move backward in the sense that concular processing does not give the benefits of EAD, AP, and other ancillary benefits that comes with pending I-485 applications.
- Allied healthcare workers who in most cases belong to EB-3 petitions will suffer tremendously since concurrently filing of I-140 and I-485 and the accompanying ancillary benefits such as EAD will not be available. One wonders how the USCIS will deal with the problem of shortage of healthcare workers in the future.
- It is hoped that the Congress steps in and works out legislative solutions to deal with these challenges ahead overcoming strong opposition from both extreme right and extreme left political forces.
Source:
http://www.immigration-law.com/
