The following information is provided for filing of employment-based I-485 applications. The information in the Questions and Answers is "general" in nature and not applicable to any individual cases. People should seek legal counsel for their specific cases. This reporter and The Oh Law Firm will not be responsible for reliance on the information on this site as we cannot guarantee accuracy of the information. People should take the information at their own risks.

Unlike previous Q&A, some of the questions in the present situation are related to a basic information, but we will try to answer some of those questions as not all of the people filing I-485 applications at this time are very knowledgeable of the immigration rules and agency practice.

Q-15 (07/23/2007) I filed the PERM application on July 3, 2007 and have yet to obtain its certification from Chicago. However, I may be able to obtain the certification probably before August 17, 2007. Do you think I can file EB 485 at that time under the USCIS reversed policy?

A-15: This is one of the questions which the USCIS should clarify as soon as possible. One view argues that inasmuch a priority date was established in July 2007 and the labor certification has been certified before August 17, 2007, the alien should be allowed to file concurrent I-140 and EB-485 application before August 17, 2007. The another view is that regardless of the priority date established in July, since the alien was not eligible to file I-140 petition in July because there was no certified labor certification in July, the alien would not have been eligible to file EB-485 regardless of the visa bullen as the underlying I-140 petition was not eligible without a certified labor certification application. I tend to agree with the second view in that any filing that could be eligible for EB-485 application only in August 2007 should be subject to the August 2007 Visa Bulletin and the USCIS does not have any authority to override the DOS jursdiction. Additionally, the USCIS decision to extend the filing period upto August 17, 2007 was to give 30 extra days to complete documentation during the extended period of time as these eligible applicants might not have enough time to complete the documentation in 14 days from July 17, 2007. It is thus my opinion that for the people to file EB-485 in August, they might have to prove that they were eligible to file EB-485 applications in July 2007. Readers are reminded that this is the view of this reporter and there are plenty of other practitioners who would disagree with this view. Accordingly, people will have to wait for the USCIS clarification on this issue.

Q-14 (07/23/2007) I am a British engineer who works for a large multinational corporation in the U.S. in L-1A visa status. My position is a vice present, production development, of a U.S. subsidiary with 1,000 employees and eight digit dollar annual revenue. I worked for the British parent company in a similar position for over five years before I was transferred to the U.S. subsidiary. The U.S. subsidiary needs my presence for the competitive product development in the global market and was about to file the concurrent EB-1C I-140 petition with I-485 application. They were unable to file it because of the July Visa Bulletin reconfiguration by the Department of State and the USCIS announcement of its policy to reject any EB-485 applications in July 2007. The company is now considering filing of such concurrent I-140/EB-485 in the first week of August 2007. However, the Visa Bulletin for August 2007 shows "unavailable" in all employment-based category. On the other hand, the USCIS, in reversing its position, announced that those who were eligible to file it under the original VB before reconfiguation but for the reconfigulation and the subsequent USCIS announcement to reject July cases, would allow them to file EB-485 even in August, until August 17, 2007. I am confused.

A-14: Theoretically, in the labor certification waiver cases like EB-1, either the employer or the alien in the self-petition cases is eligible to file a concurrent I-140 and EB-485 application. As such, you would have been eligible for such concurrent filing and would have filed it in July but for the government actions. Accordingly, arguably you should be allowed to file such concurrent I-140/EB-485 until August 17, 2007. However, there is a group of people who argue that for the labor certification waiver cases, at least I-140 petition should have been filed to establish a July priority date in July 2007 as such filing of I-140 was not precluded by the visa number unavailability. We may call this position a conservative view. If you want to follow the conservative view, you can still achieve it by electronically filing I-140 petition in next one or two days. Electronic filing will give you the case number immediately upon filing of I-140 petition online. With such proof, you may be able to file EB-485 before August 17, 2007. However, regardless of do-ablility, we do not know whether such filing in August will be recommendable. Because of the potential fraud and abuse by people filing such petition with suspicious eligibility just to obtain an EAD or AP, the USCIS is likely to take a lot of time to scrutinize the eligibility. Consequently, it will take an enormous amount of time to obtain approval of such petition in the future. This is particularly true when, even though the visa number may not be available for the rest of FY 2007, it will be almost certain the visa number for the first preference EB for the Rest of World category may become available in October 2007.

Q-13 (07/22/2007): My EB-3 priority date is May 25, 2004 India. I filed I-485 application for myself and my family on July 20, 2007. I have a number of friends who filed I-485 application on July 19, 2007. Their priority date is June 15, 2007, PERM labor certification based. I understand that when the Service Centers start processing July Visa Bulletin fiasco cases, they will process in the order of priority dates. I expect that my application will be processed and adjudicated ahead of the other friends who have a very low priority date. This should be fair. Am I right?

A-13: I am afraid you are wrong. Within the Service Centers, the processing queue is determined by the FIFO rule. It means that regardless of the priority dates, the receipt date and not priority date determines one's place in the processing queue. For the purpose of the processing and adjudicating officers, priority dates are used to determine whether the visa number is available in each month and do not affect the processing queue. When there are cut-off dates in the visa bulletin, those cases whose visa number are available are processed based on the receipt dates among the cases for which visa numbers are available. Of course, those cases that do not have visa numbers in the month will not be adjudicated regardless of earlier receipt dates. Those whose visa numbers are available are not necessarily adjudicated exactly in the order of receipt dates because of a number of factors involved. For instance, the two people with the same receipt date may be approved in different dates depending on the RFE, NOID, fingerprint results, name check/security clearance, need for investigation, etc. etc. Additonally, some cases are expedited for the reasons which are specified in the USCIS policies. One common misunderstanding in the immigrant community is to take the processing of immigration applications as a production beltline in the manufacturing plant. That is absolutely wrong. Unlike product processing line in manufacturing plant, the immigration "processing and adjudication" involve a lot of legal processes before it reaches a final decision. To sum up, the processing queue is determined by the receipt dates and not by priority dates in each Service Center. Some of the earlier starters may take it "unfair" considering the time he/she has spent to reach the stage as opposed to those who have just obtained the labor certification approval through the quick electronic PERM process. Well, that is the fact of life.

Q-12 (07/20/2007): I am a nurse who is very excited about the immigration door opened to me by the USCIS and DOS reversal. I suppose I now can file Schedule A labor certification waiver I-140 petition concurrently with the I-485 application for myself and my family members. What steps do I have to take?

A-12: It sounds you have not obtained I-140 petition. I hate to disappoint you but you may not be able to take advantage of this opportunity because the procedural hurdle that accompnies the Schedule A petition. The Department of Labor rule requires a notice to the nurses union for a period of time before I-140 can be filed. At this juncture, there is no way you can meet the notice requirement before the end of July. It will thus make you ineligible to file a concurrent I-140 and I-485 application under the July 2007 VB, when you are considered ineligible to file it within July, 2007, the USCIS decision to extend the I-485 filing period until August 17, 2007 may not be available to you. The USCIS has yet to make clear on this interpretation. We hope that the AILA will be able to obtain such opinion from the USCIS HQ. Please watch for the AILA report on the USCIS clarification of various issues involved in its announcement on July 17, 2007.

 

Q-11 (07/20/2007): I filed I-485 application in July along with EAD and AP application, I have yet to receive the Receipt Notices. I am currently in a H-4 status which is valid until September 1, 2007. For family matter, I will have to leave immediately using H-4 status and plan to return on August 28, 2007. There may be a slight delay in the return trip and I may have to return after September 1, 2007 with an AP which will be hopefully approved by the USCIS and my spouse will forward to me. Any problem?

A-11: You will have a number of problems. Firstly, you do not know what is going to happen with the I-485 application which you filed. It is not unusual that the application is often rejected and returned not because of the visa number problem but because of documentation problem. Since you will remain outside the U.S. beyond August 17, 2007, you will not be able to refile it. Secondly, even if your spouse receives the receipt notices and approval notices for AP and EAD and forward the papers to you abroad, you can still face problem. Assuming that you would rather want to return on August 28, 2007 using the H-4 visa stamp in the passport which will remain valid until September 1, 2007, you will be given a I-94 at the airport which will be valid only until September 1, 2007. What that means is that your H-4 nonimmigrant status in the U.S. will expire on September 1, 2007. Accordingly, you may have to ship out I-539 H-4 extension application on August 29, Wednesday via overnight delivery services, which will then be delivered to the Service Center on the 30th, Thursday. If, for some reasons such as flight delays or other matters, this does not happen, you cannot return to the U.S. with additional serious consequences. Under the rule, if you intend to travel on AP, you should obtain the AP approval paper before your departure from the U.S. If you depart from the U.S. before the approval of AP, you will not be admitted to the U.S. on the AP unless the inspector at the airport makes a mistake. More importantly, since it will be considered a departure from the U.S. without an AP, your pending I-485 application will be considered "anbandoned" and will be denied in the future. Again, under the given circumstances, people should be aware of the potential deadly consequences of overseas trip without a proper document.

Q-10 (07/19/2007): I am about to file I-485 per the USCIS reversal of rejection decision. In about ten days, I will have to leave the country and return in September 2007. I have a valid H-1B visa in the passport. Will I have a problem?

A-10: I have been receiving a large number of emails with a question of traveling in a valid H-1B status pending receipt notice of I-485 applications. The H-1B alien enoys the dual intent of permanent resident intent and temporary resident intent at the same time. Accordingly, filing of I-485 will not affect his/her H-1B status including traveling on a valid H-1B visa in the passport. However, there is a risk for such trip at this time because of the special circumstance. As I explained earlier in answer to another question, the law requires that I-485 applicant must be physically present in the U.S. to "file" I-485 application. Physically delivery of the I-485 application alone does not constitutre "filing." If the I-485 application is "rejected" for one of the various reasons, it is not considered filed. If the application is rejected and returned, you should quickly refile it, certainly before August 17, 2007. When you are not present in the U.S., you will not be able to file it. If someone files it on your behalf when you are physically not present in the U.S., the USCIS will eventually detect it while they adjudicate your I-485 application since part of ther jobs is to check every single entry and exit stamps. I do not recommend people to leave the country before receiving the Receipt Notice.

Q-9 (07/19/2007): Under the DOL final rule on elimination of substitution, effective July 16, 2007, employer is required to pay the cost of labor certification application. Now, I am about to file a concurrent I-140 and I-485 packet. Is the employer required to pay the filing fees not to be charged for violation of the regulation?

A-9: The Department of Labor regulation which you alluded to have no effect on the I-140 and I-485 proceedings of the USCIS. The fees can be paid by the employer or the employee and his/her family members. In writing filing fee checks, you should follow religiously their instructions of writing checks. Otherwise, the filing will be rejected for the flaws in the filing fee checks. Here are a few rules: (1) Date must not be a future date; (2) No numerical numbers whatsoever should be written or printed in spelling out the amount alphabetically; (3) Make payable to the Department of Homeland Security; (4) Signature should not be missing; (5) No corrections are allowed. Any minor correction will be tossed out as invalid checks not by the banks but by the USCIS; (6) In memo section, case type, petitioner/applicant name, and "A" number, if any, should be cliearly and legibly written: For instance, for I-140, must write I-140, xyz company, on behalf of John Doe, Axx xxx xxx. For I-485, write I-485 plus finger print fee, John Doe, A----. For I-765, write I-765 (C-9) [If employment-based 485], John Doe, A----, and for I-131, write I-131, Advance Parole, John Doe, A-----. If you do not have A number, you do not have to write it. Make it sure that you keep a photo copy of the checks.

Q-8 (07/19/2007): I am unmarried in H-1B and have to make it sure that my futrure wife will not be separated from me over the ocean because of my filing of I-485 application. At the same time, I cannot wait because my current employer business is unstable and I may have to seek new employment after 180 days of filing of I-485 application. What do I have to do? Would filing EAD and AP affect my future wife's chances of joining in the future in H-4 status?

A-8: Obviously two primary benefits, among others, of filing I-485 applications are: (1) AC 21 portabilility after 180 days of I-485 filing; and (2) EAD and AP. There is common misunderstanding in the immigrant community that applying and obtaining EAD and AP will affect their H-1B status. EAD and AP will affect their H-1B status not because of obtaining it but because of "using" it. Until it is used, it will not affect the H-1B status and you will be able to bring your future wife in H-4 status. When you port to new employment after 180 days, you should make it sure that your employer files a new H-1B for you such that you maintain a H-1B status until you are married and bring your spouse into the U.S. to join you in H-4 status. Singles should marry "before I-485 is approved." Inasmuch as the marriage is consummated and legalized before the date, he/she will be able to file I-485 applications using your EB priority date if he or she is present in the U.S. and the visa number is available for the priority date. The date of marriage is controlling factor to determine whether one's future spouse will be subject to employment-based immigration visa numbers or family-based (F2A) immigration visa numbers. Inasmuch as the spouse is married to you before your I-485 is approved, she will be eligible for a green card application using your EB visa classification and visa priority date in the future. Unless the Congress passes an employment-based immigration reform, the current filers are likely to experience a tremendous delay in approval of I-485 applicatios. Ironically, it will be a "blessing?" for the single gals and guys. Hmm......................Oh, how I misszzzzz... those days?!

Q-7 (07/19/2007): Since I could not file I-485 in July, I filed a stand-alone I-140 petition last week. I have yet to receive the Receipt Notice. What do I have to do?

A-7: Believe it or not, this is one of the most common questions I have received in the email. Without I-140 Receipt Notice and case number, there is absolutely no way you can file a stand-alone I-485 application. Assuming that you filed earlier and at least you found the receipt number through the cancelled check, it is still risky to file a stand-alone I-485 under the given circumstances. You can ask the USCIS "interfile to XXXXXX" without a copy of the pending I-140 receipt notice, but it is still not recommended. The option may be filing a new concurrent I-140/I-485. But predicament is lack of "original" labor certification. Service Centers have been denying such I-140 petition in a number of cases for lack of original labor certification application. The AILA may attempt to find an answer for this situation, but under the circumstances, you may not have any option other trying filing with the best evidence of I-140 petition filing proof including a copy of the cancelled filing check from the bank, federal or ups overnight delivery tracking record, complete copy of I-140 petition and supporting documentation, and I-485 application and documentation. It is better trying than doing nothing at this point. Or you can wait until first or second week to see whether you will receive the receipt notice of I-140 petition and file I-485 applicatiopn with this receipt notice. Inasmuch as you were eligible in July under the July VB, the extended period of I-485 application may work.

Q-6 (07/19/2007): My wife and children are currently travelling in our home country. I am eligible to file I-485 application under the new USCIS announcement of 07/17/2007. Can I file I-485 application and my family file Immigrant Visa Application in our home country?

A-6: No. Either the following-to-join or accompanying beneficiary (family members) cannot apply for an immigrant visa until your green card is approved first. Additionally, they will be subject to the visa regrogression as their priority date is the same as yours. To avoid the potential tragic consequences, they should immediately return to the U.S. and file the application in July. Again, whether or not they will be able to file I-485 applications after returning to the U.S. in August (before August 17) remains an open question, because in July, they were not present in the U.S. and not eligible for I-485 application at the time since they were not in the U.S. physically. One of the threshold requirement for I-485 application in normal situation is physical present in the U.S. at the time of filing. Inasmuch as they return in July, they may be eligible to file during the extended period in August.

Q-5 (07/19/2007): I field and obtained PERM application in May 2007 and subsequently filed and obtained I-140 petition approval last month through the premium processing services. I am reaching the six-year limit of H-1B but I will not be eligible for the 7th year extension because the labor certification was filed not 365 days back. It is thus critically important that I be allowed to file three-year increment H-1B extension during the period of visa number retrogression. What do I have to do?

A-5: In July 2007, VB is "current" and there is no retrogression for any categories other than "other workers," while in August VB, everything is "unavailable." At this time, it is uncertain whether the USCIS will determine the three-year increment extension eligibility at the point of time of filing or at the point of time of adjudication. Their decisions have been showing mixed results. Under the circumstances, it would be safer for the people not to file such H-1B extension petition until after August 1, 2007 unless the current H-1B status runs out before August 1, 2007.

Q-4 (07/19/2007): I have just learned that my labor certification was approved on July 17, 2007 and may not have enough time to collect initial evidence to file I-485 application before the end of July 2007. Consequently, I intend to file concurrent I-140/I-485 packet in the first or second week of August. The problem is filing fees. I understand the fee goies up as of July 30, 2007. What do I have to do?

A-4: The reversal announcement of the USCIS appears to indicate that for the I-485 application, they are likely to accept the filing fee under the fee schedule in effect before July 30, 2007 when people find the I-485 applications during the extended period of filing in August 2007. The problem is I-140 petition filing fees. Since the I-140 petition could have been filed regardless of the July VB, the USCIS may be able to advance an argument that people should pay a new increased fee. Related question is whether filing fee should be paid for EAD and Advance Parole applications in such situation. Under the current rule which remains effective until July 29, 2007, people have to separate fees for EAD and AP, but under the new fee schedule, these fees are waived when they are filed as part of the I-485 applications on or after July 30, 2007. Again, the AILA is actively seeking answers to this question of I-140 petition filing fees in a concurrent filing situation. However, should the AILA fail to obtain the answer timely, I would recommend that people submit two separate checks for I-140 petition in such situation one with the old filing fee and the other with the new filing fee. The USCIS will then fee in the I-140 petition using the check with the right amount and return the check of incorrect amount. In fact, this should be one of the filing tips fcor July and August I-485 filing. People should never write one check to cover I-140, I-485, I-765, and I-131, because if there should be any flaws in the check, the entire filing will be rejected and returned after weeks or months in the worst case. People should write one separate check for each petition or application. For instance, in the concurrent filing, people should write one check for I-140, one check for I-485, one check for EAD, and one check for AP. Obviously, the packet should include the applications for family members in most cases. It will turn out to be the worst mistake to write one check to cover the whole family and a number of different applications. Any flaw in one of the application in any member of the family will result in the rejection of filing of entire family! Beside, such payment will deprive them of tracking and checking each of these different cases for different family members in the event that the Receipt Notices are misdelivered or lost. The cancelled check for each application will permit people to check the case number on the back of the cancelled checks. Never write one check to cover several different types of applications or petitions or more than one applicant. It will be silly to file the cases by regular U.S. Mail either as one cannot track down the receipt. Always use overnight delivery services using the street address of the Service Center clearly noting the overnight delivery "tracking number" in the cover letter. Again keeping a overnight delivery order or receipt notice is not enought in the event of proof of filing as such fedex or ups receipt will not be able to prove that it was shipped for "a specific case." That fedex or ups receipt can represent a host of other deliveries from the perspectives of the Service Center. Noting the tracking number in the cover letter will be able to tie the fedex or ups receipt to the specific filing which is noted in the cover. Important, important.

Q-3 (07/19/2007): I have collected all the supporting documentation for I-485 application except the medical examination. Because of the USCIS initial decision to reject the July applications, I decided not to file my I-485 applications. Since yesterday, I have been trying everything to schedule a medical examination but the earliest out I could get was July 30, 2007. There is no way I can get the sealed envelope of I-693 before the end of July 2007. Should I just file my I-485 applications in July with the medical report or file it in August with the medical report?

A-3: The medical report is a part of so-called "initial evidence," Under the Timeline Flexibility rule which the USCIS took lately, the USCIS can either reject or deny I-485 applications without accompanying initial evidence. According to the AILA's recent question to the USCIS on this issue, they replied that the application could be either rejected or denied. Accordingly, the risk of riling without medical report is very high at this point. On the other hand, if you decide to file in August, there may arise a question of eligibility of filing I-485 applications in July with the medical report. In my opinion, though, the purpose of extending the filing period until August 17, 2007 to give a 31-day window period to file the application considering the time for collection of the required documentation, the USCIS may not advance such restrictive practice to reject the I-485 application which will be filed in August 2007. Again, this is one of the questions which the AILA will explore with the USCIS for their answers, but as it stands now, the latter option is less riskier than the first option.

Q-2 (07/19/2007): I filed PERM labor certification application on July 2, 2007. We have yet to receive the approval of this application. Will I be able to submit I-485 application if I receive the labor certification application in the first week of August 2007?

A-2: In reversing the decision to reject I-485 applications which are received on or after July 2, 2007, the USCIS has extended the filing period until August 17, 2007. However, the August VB shows that visa numbers will be "unavailable" in August 2007. It thus appears that the USCIS is extending the filing deadline for the I-485 applications which were eligible to file in July under the original July VB but is failed to file it July 2007 for a number of reasons. The USCIS appears to extend the filing date until August 17 for these types of applications. However, in your case, you would not be eligible to file I-485 application in July 2007 since you did not have the certified labor certification application before August 1, 2007, you may not be eligible to file I-485 application between August 1 and August 17, 2007. However, if you receive the labor certification application before the end of July, you should be able to file your I-485 application in August between 1st and 17th. The AILA is currently collecting tricky questions from the members and intends to obtain answers from the USCIS. This can be one of those questions. Remember, though, that the USCIS announcement is not authorized to change the August 2007 VB and will not be able to accept any I-485 application like yours after August 1, 2007 in my opinion.

Q-1 (07//19/2007): I filed I-485 application on July 2, 2007, but have yet to receive either rejection or receipt notice. Will this application be fee'd in under the reversal of the USCIS decision?

A-1: The DOS withdrew any changes to the original July VB and assumedly visa number is current in July 2007 for any categories other than "other worker." Accordingly, the 485 application which you submitted on July 2 cannot be rejected by the USCIS at this point. The USCIS is likely to fee in your application and soon issue the Receipt Notice.