jambalakadi
Member
www.immigration-law.com
The policy of concurrent adjudication of the concurrently filed I-140/I-485 was intended to bring a positive result in reduction of backlogs. However, the current practice of concurrent adjudication with no flexibility appears to work the other way. The concurrent "adjudication" policy was apparently adopted without a solid solution to reduce the I-485 processing times which should have accompanied the concurrent adjudication policy announcement. With no obvious solutions to reduce the I-485 applications, the adoption of the concurrent adjudication policy resulted in mounting I-140 processing backlogs. For the concurrent adjudication policy to work, the USCIS should have imposed the processing time of six months for the I-140 petitions and in the event that the I-140 and I-485 could not be concurrently adjudicated within the period, it should have allowed the adjudicators to adjudicate I-140 petitions relieving the petitions from being a state of hostage of I-485 processing and adjudication. Obviously, processing and adjudication of I-485 applications should take time because of the security check concerns and issues of I-485 applicants' violation of immigration laws. Such "flexibility" of the concurrent adjudication policy is increasingly demanded for the following reasons, among others. One is its negative impact on the AC 21 Act on portability of employment-based green card applications after 180 days of I-485 filing. The delay of I-140 petition adjudication as effected by the concurrent adjudication policy and the so-called Yates Memo of August 2003 which interpreted the AC 21 Act to require I-140 approval before one can change employment even after 180 days of I-485 application filing "de facto" seriously compromised the legislative intent of the Act 21 Act and choked this provision of this statute to "close to death." A rumor has been flying around for quite a while that the Yates Memo may be revisited and reversed by the agency itself sooner or later, but we have yet to see the announcement. Secondly, by now, we know that as early as January 2005, the immigrant visa numbers for employment-based categories for certain countries may regress and the current inflexible concurrent adjudication policy and its negative impact on processing of I-140 petitions pose a serious threat to the AC 21 Act. The harm will be heightened because of the potential policy of USCIS not to adjudicate I-140 petitions unless the priority date is current for the alien beneficiaries. Thirdly, the approval of I-140 is also precondition of retention of the priority date for the alien beneficiaries under the current rules and delay of the I-140 petition will prevent certain aliens from taking advantage of the new labor certification system called "PERM" and trying to overcome priority date problem by attaining a new labor certification application under the new online labor certification system that promises to adjudicate labor certification application in a flash.
It is submitted that the current concurrent adjudication policy serves no clearly-defined purposes including reduction of backlogs and rather forms a disservice to the backlog reduction as well as public interest. It is thus urged that the USCIS either abandons this policy or operates the policy "flexibly" such that I-140 petitions do not become a hostage to the time-consuming I-485 proceedings
The policy of concurrent adjudication of the concurrently filed I-140/I-485 was intended to bring a positive result in reduction of backlogs. However, the current practice of concurrent adjudication with no flexibility appears to work the other way. The concurrent "adjudication" policy was apparently adopted without a solid solution to reduce the I-485 processing times which should have accompanied the concurrent adjudication policy announcement. With no obvious solutions to reduce the I-485 applications, the adoption of the concurrent adjudication policy resulted in mounting I-140 processing backlogs. For the concurrent adjudication policy to work, the USCIS should have imposed the processing time of six months for the I-140 petitions and in the event that the I-140 and I-485 could not be concurrently adjudicated within the period, it should have allowed the adjudicators to adjudicate I-140 petitions relieving the petitions from being a state of hostage of I-485 processing and adjudication. Obviously, processing and adjudication of I-485 applications should take time because of the security check concerns and issues of I-485 applicants' violation of immigration laws. Such "flexibility" of the concurrent adjudication policy is increasingly demanded for the following reasons, among others. One is its negative impact on the AC 21 Act on portability of employment-based green card applications after 180 days of I-485 filing. The delay of I-140 petition adjudication as effected by the concurrent adjudication policy and the so-called Yates Memo of August 2003 which interpreted the AC 21 Act to require I-140 approval before one can change employment even after 180 days of I-485 application filing "de facto" seriously compromised the legislative intent of the Act 21 Act and choked this provision of this statute to "close to death." A rumor has been flying around for quite a while that the Yates Memo may be revisited and reversed by the agency itself sooner or later, but we have yet to see the announcement. Secondly, by now, we know that as early as January 2005, the immigrant visa numbers for employment-based categories for certain countries may regress and the current inflexible concurrent adjudication policy and its negative impact on processing of I-140 petitions pose a serious threat to the AC 21 Act. The harm will be heightened because of the potential policy of USCIS not to adjudicate I-140 petitions unless the priority date is current for the alien beneficiaries. Thirdly, the approval of I-140 is also precondition of retention of the priority date for the alien beneficiaries under the current rules and delay of the I-140 petition will prevent certain aliens from taking advantage of the new labor certification system called "PERM" and trying to overcome priority date problem by attaining a new labor certification application under the new online labor certification system that promises to adjudicate labor certification application in a flash.
It is submitted that the current concurrent adjudication policy serves no clearly-defined purposes including reduction of backlogs and rather forms a disservice to the backlog reduction as well as public interest. It is thus urged that the USCIS either abandons this policy or operates the policy "flexibly" such that I-140 petitions do not become a hostage to the time-consuming I-485 proceedings