THIS POST WAS UPDATED ON OCTOBER 8, 2020 to provide updated information concerning USCIS filing fees.
So what’s the big deal with the October Visa Bulletin? The October 2020 Visa Bulletin showed significant forward movement in several employment-based categories. And additionally, USCIS announced that they will accept “dates for filing” in terms of who is eligible to file their applications for adjustment of status. This is a break from usual patterns, and it is of particular significance to individuals with chargeability to India who have been waiting for years to be able to file their applications to adjust status.
I have an EB-2 case, but the priority date is only current for EB-3. What do I do? You can keep your EB-2 petition and wait until that date becomes current, or you can refile an I-140 Petition in the EB-3 category. Some refer to this as “downgrading,” but it is simply refiling in a different category for which you are also eligible. At this time, it is only recommended to consider doing this if your priority date is available in the “dates for filing” chart, thereby allowing you to seek adjustment of status in the EB-3 category.
If I do not seek to recategorize my EB-2 petition as an EB-3 petition, how long will I have to wait? Unfortunately, we are unable to make a prediction. It could happen in the near future, or it might take several years.
How do I decide whether to refile as an EB-3? One important factor to consider is whether you have any children who are not U.S. citizens. If they are teenagers, it might be wise to file during this window, as they otherwise could very well “age out” from your case. The Child Status Protection Act does give protection to some children who turn 21 during the pendency of their parents’ cases, but one requirement is that the child must seek to acquire permanent resident status within a year of visa availability. So certain children may become ineligible to seek permanent residence as your dependent. If that is not a relevant consideration, then you must weigh the pros and cons discussed below and make the best decision based on the information you have at this time.
If I elect not to refile my I-140 Petition in the EB-3 category, what will that mean? This means that you will have to wait until the future Visa Bulletin shows a priority date in your EB-2 category that is later than your priority date. No one knows how long this will take.
Will it take longer for me to get my green card, if I refile as an EB-3? Unfortunately, there is no clear answer to this question. The October Visa Bulletin suggests that EB-3 cases are running several years faster than EB-2 cases. However, it is certainly possible that the ultimate green card approval is slower in EB-3, particularly if there is a huge rush to recategorize EB-2 cases. Unfortunately, no one knows how this will play out.
If I change to EB-3 now, can I go back to EB-2 later if it looks like it will be faster? Possibly. In the past, USCIS has not required that anything be done with the EB-2 petition; rather, the approval has remained, and people could move between I-140 petitions. There is not a specific application or form that is associated with such a process, so even if this process remains available, we cannot tell you for sure how quickly such a transition would happen. Additionally, we cannot guarantee that USCIS will retain this policy of permitting a jump from one I-140 petition to another.
How long will I-140 processing take, if we recategorize? USCIS typically has taken around 4-6 months to process I-140 Petitions. This can fluctuate, so you should keep an eye on USCIS Case Processing Times on their website. Additionally, with your receipt number, you can review your Case Status on the USCIS website. The I-140 processing time should not really impact the overall processing time for your I-485 case.
I’m not ready to decide. May I wait and file in November or later? As of the writing of this blog, we do not yet know what the November Visa Bulletin will look like. We don’t know whether the dates will retrogress, and we also don’t know whether USCIS will continue to accept “dates for filing” priority date cases, rather than their usual acceptance of only “final action date” priority date cases.
What will my filing fees be? USCIS published a new filing fee schedule, which was supposed to take effect on October 2, 2020. This fee schedule would have required a $1,130 adjustment of status application fee, with optional $550 and $590 fees for individuals wanting to file for employment authorization (EAD) and advance parole (AP). However, the proposed fee changes were enjoined by a federal court, meaning that as of this blog update, the filing fees remain $1,225 for adjustment of status, including EAD and AP. The filing fee for children 13 and under is $750, when they file along with a parent.
Should I file the EAD and AP applications? Keep in mind that you can file one, both, or neither. Even if you do not file now, you can always file later.
- Pros: One major “plus” to having advance parole is that you can utilize this to travel instead of having to obtain H-1B, H-4, or other nonimmigrant visas on future overseas trips. It’s always nice to avoid an unnecessary trip to the U.S. Consulate, particularly in this pandemic, where certain people are not able to get a visa at all, and all others face possible interview scheduling delays as the Embassies and Consulates are reopening. A major “plus” to having the EAD is that you have a “back up” to your current nonimmigrant visa status, in the event that your future extensions are denied. For children who have been on H-4, it is also a way for them to obtain a Social Security Number without having to wait for the green card.
- Cons: The main “disadvantage” to submitting these applications is that you may have to pay the filing fees, if the court removes the injunction and allows USCIS to proceed with requiring its proposed fees. As long as you are continuing to maintain your H-1B and H-4 status after filing, you can also travel on that particular visa and return to the US without abandoning your applications. Individuals not maintaining status and individuals on other visa types should consult with an attorney prior to making a decision about this matter.
If my H-4 spouse already has an EAD, should I file a new one? This is a personal decision. The current administration has suggested that they may dismantle H-4 EAD regulations, but this has not happened, as of the writing of this article. For continuity of employment, the more conservative / cautious approach is to file a separate EAD. Note that if the H-4 EAD is in process, the pending case cannot be converted, and filing fees cannot be refunded.
What do I need from my I-140 Petitioner? They will need to sign Form I-485J confirming your continued job offer. If you are reclassifying your original EB-2 case as an EB-3 case, they will have to refile a new I-140 Petition and provide additional signatures and information.
Should I file my I-485 case with a completed medical examination? This is optional. USCIS permits applications to be filed without, so you do not have to stress out about getting the appointment and completed medical examination from a qualified civil surgeon. We can submit the completed medical examination with your I-485 Application as long as it has been completed within the past 60 days at the time your application is submitted. However, in the event that your case remains pending for longer than two years, the medical examination will expire. If you do not submit a medical examination with the I-485 Application, we will receive a notification from USCIS that it will be required in the future, and at some point down the road, USCIS will issue a Request for Evidence (RFE). In our experience, these RFEs have not really caused a significant delay in processing times, as USCIS frequently will issue an RFE for updated employment information anyway.
Do I have to provide information for the I-944 Declaration of Self-Sufficiency? USCIS has indicated that they will not reject cases filed prior to October 13, even if the declaration and supporting documents are not included. However, all of this information will be required at some point, and if it is not initially submitted, a Request for Evidence will be issued.
What do you need from me? For cases in which we are undertaking representation, we will provide you with full checklists and questionnaires, in order to streamline the process as much as possible.
When I give you everything, how long will it take for you to prepare my paperwork? This will depend on when we receive the paperwork and how many people provided all documentation already. We are unable to provide a specific timeline, but rest assured we understand how important this is to you, and we are working as quickly as possible to accurately and completely process each person’s case.
I have heard that in the past, USCIS stopped accepting applications in the middle of the month, even though the Visa Bulletin was supposed to be current. Will this happen to me? This is exceedingly unlikely to happen. It appears that this concern stems from September 2015, when there was a second visa bulletin issued which superseded the original one, thereby preventing some people from submitting at that time. The important difference, however, is that we now have the bifurcated Visa Bulletins with “dates for filing” and “final action dates” charts, and these have accounted for the number of cases being filed. This was not the case in September 2015. Therefore, we fully anticipate continuing to submit applications for the entire month of October.
Once my I-485 is filed, when will I receive my case numbers from USCIS? USCIS has historically issued receipt notices within a week or two of receiving a submission. However, the recent trend is that receipts are taking longer, sometimes upwards of 6 weeks.
When will I receive my biometrics notice? Generally, these notices are issued within a couple of months of submission. However, due to the anticipated volume of cases being filed next month, it is very possible that it may take longer. In our experience, the timing of a biometrics appointment does not have an impact on the overall timing of the case.
If I file for an EAD (work permit) and advance parole, when will I receive that? Historically, USCIS processed these applications within 90 days, but in the past couple of years, it has been closer to 6 months, on average. Once your receipts are issued, you will have an indication of where your case is pending, and you can track general USCIS Case Processing Times on their website. Additionally, with your receipt numbers, you can review your Case Status on the USCIS website.
Will I have an interview before I’m approved for permanent residence? This remains to be seen.
When will my green card be approved? This is a great question, but unfortunately it’s one with no clear answer! The last time there was such an open filing window, in 2007, some cases remained pending for a number of years due to subsequent visa bulletin retrogression. It is important to note that with employment-based preference I-485 applications, you cannot rely simply on the average USCIS processing times. Even if your case reaches that processing time, it cannot be adjudicated unless your priority date is earlier than the “final action date” on the visa bulletin.
For further questions, please contact Jennifer West (jwest@rothjackson.com).
