THE OH LAW FIRM

Dedicated Professionals in Immigration Law

01/20/2007: [Retrogression, EAD, AP]: I filed EB-3 based I-485 application. Because of the EB-3 visa number retrogression, I will have to wait for a long time before my I-485 is adjudicated. Pending I-485 adjudication, I exhausted the six-year H-1B limit but extended H-1B status for three year using AC 21 section 104(c). About nine months ago, I visited my family in my home country using Advance Parole which remains valid April 2007. Since returning from the trip on AP, I have been working without a valid EAD. My H-1B I-94 will expire in March 2007 and I want to keep my H-1B status until the green card approved. What do I have to do?

Analysis: The rule on AD, EAD, and H-1B status pending I-485 is very complicated as related to the interpretation of the AC 21 Act. This rule has to be fixed by the AC 21 regulation, which has been delayed by the USCIS for years and years. In order to deal with the confusion in the immigrant community, the USCIS has released various memorandums to offer some answers to these questions with a warning that the interpretation would remain "provisional" and can be changed once the AC 21 regulation is enacted and released. Until such regulation is released, though, the memorandums have given guidances to the immigrants. Under the current guidance, the H-1B alien can return to the job on Advance Parole and resume the H-1B empoyment without a valid EAD, and the alien can also reinstate the H-1B status by filing application for extension of thre H-1B status. However, there are a few caveats when it comes to the details in factual situations. First one can reinstate the H-1B status only when the H-1B I-94 remains valid at the time of filing of the extension application. Accordingly, in the current fact situation, the current H-1B will expire before Advance Parole I-94 will expire and the alien must file the H-1B extension petition to resume the H-1B status before the H-1B I-94 expires. If the situation is opposite in that Advance Parole I-94 will expire first before the H-1B I-94, the alien must still file H-1B extension before the Advance Parole I-94 expires. Otherwise, the alien will not have a valid employment authorization. H-1B status is not automatically reinstated. Retainstatement H-1B status requires the action of filing of H-1B extension petition. Recently, Aytes memorandum liberalized the interpretation of the H-1B extension eligibility, but such liberal interpretation does not apply to the situation of an alien in a parolee status after the H-1B nonimmigrant status is expired. Secondly, as for the employment authorization without EAD, once H-1B expires first, it should be assumed that the employment authorization will also expire as the employment authorization is presumed on a valid H-1B status. Accordingly, the alien must timely file H-1B extension petition regardless of the validity of advance parole. Again, people should remember that this rule is provisional and can change either by the enactment of AC 21 regulation or release of different memorandum.

11/07/2006: I filed a EB-2 PERM application requiring a Master's degree or Bachelor's degree in Computer Science plus 5 years of experience. The employer also stated that the employer would consider any suitable combination of education or training or experience in lieu of the alternative qualification requirement. This PERM application was approved and the employer filed EB-2 I-140 peition with the Nebraska Service Center, Shockingly, my employer has just received a denial of I-140 petition that the job was not an EB-2 job and not qualified for EB-2 petition approval. What is going on?

Analysis: The PERM regulation requires that when the alien is qualified for the application only through the alternative qualification requirement, unless the employer opened the job opportunity anyone who has a suitable combination of education, training or experience, the PERM will be denied. Accordingly, in order to satisfy this requirement in the PERM regulation, the employer considered a suitable combination of education, training or experience when the alien employee can be qualified for the job only through the alternative qualification requirement. Such EB-2 I-140 petitions have been approved without any challenges by the Service Centers. However, we see growing number of I-140 petitions denials lately where such facts are involved. It is thus imperative that people work very closely with their legal counsels not to be trapped by the technicality in the PERM regulation and USCIS I-140 EB-2 petition rule.

11/06/2006: I have just received the approval of the RIR labor certification application from DBEC. Belatedly I have just found out that the place of city where I was born shows a different city. Would I experience denial of I-140 petition or I-485 application if the USCIS learns from the passport and birth certificate the information on the place of birth city?

Analysis: Once the labor certification is approved, the DBEC cannot amend the certified labor certification application. Before the certification, you should have detected the error and requested the DBEC to amend the error by fax request. You will have to deal this problem with the Service Center. The information on the place of birth is related to the "identity" of the alien beneficiary. Should the error was made with the country of birth, it could have been much more complicated, but when it comes to the city or village of birth, people from time to time make a mistake. Your lawyer should collect evidence to establish that the two persons with different places of birth represent same person. The USCIS is likely to accept such evidence of identity and accept the correct city of birth in the I-140. The evidence of identity is very important to prevent fraud in the immigration proceeding. The identity is also very important from the perspectives of the government for security and criminal clearance. Your lawyer should know how to develop the evidence.

11/05/2006: I filed EB-2 I-140 concurrently with I-485 application. Pending I-485 applications, I and my spouse have been issued EADs. Using the EAD, my spouse spouse has been working with an employer for the last four months. My spouse wants to change employer now. I am eligible to change employer under AC 21 as my 485 has been pending more than 180 days. I wonder whether my wife can change employment even if her I-485 has not been pending more than 180 days. She is a high level Softwae Engineer.

Analysis: Generally EAD is permitted to go into an open job market to take a job. In your case, you are the primary beneficiary of the I-140 petition and subject to AC 21 rule. Within 180 days of 485, you can still take second or third jobs, but you are not supposed to change employment from the I-140 petitioning employer to a new employer until you pass 180 days after filing I-485. When you do not change the employer but rather take second or third jobs using EAD, you do not face I-485 eligibility problem inasmuch as you work for the I-140 petitioning employer for the petitioned job but you will lose your nonimmigrant status including H-1B. Theoretically, the beneficiary of labor certification application does not have to be a presently employed alien as the labor certification job is a future job. However, when the beneficiary worked for the petitioning employer at the time of labor certification filing, and afterwards, changes employer pending labor certification application or pending I-140 petition or before 180 days of I-485 filing, the USCIS will suspect the existence of the job for the labor certification or I-140 petition and may try to deny I-140 petition or revoke I-140 petition, should employer fail to prove the existence of the offered permanet job. Your spouse is in a completely different situation. Your spouse is a derivative beneficiary of your I-140 petition and issuance of EAD will allow to take any jobs or change jobs any time at any stages, regardless of AC 21 180-day portability rule, pending your spouse's I-485 application. Of course, your spouse will lose the H-1B status from the time your spouse take a new job using the EAD.

The employment-based I-485 application has been approved for me but my wife's and children's applications are still pending because of documentation or other issues. What will happen to them on October 1, 2005?

Analysis: The priority date for family members (spouse and children) is determined by and same with the principal alien's. If the October Visa Bulletin shows their priority date is later than the cut-off, the USCIS or the American Consular officers cannot approve their pending I-485 until the first date of the month when their priority date is available in the monthly visa bulletin.

I received the I-485 approval notice in the mail on September 30, 2005. How will my green card be affected on October 1, 2005?

Analysis: When the USCIS adjudicates the I-485 applications at the final stage, they first check with visa numbers with the U.S. Department of State either via phone or computer before they approve the applications. Accordingly, once people receive an approval notice, they already took out the visa number and are safe.

I have already filed I-485 application but my spouse is outside of the U.S. and has yet to arrive and is scheduled to arrive here on September 30, 2005. Can my spouse submit his/her I-485 after he/she arrives?

Analysi: No. At the time I-485 is received by the Service Centers, a visa number must be available. Since the chances are that his/her I-485 application may not be delivered to the Service Centers before the end of the date of September 30, 2005, he/she will not be able to file the application and must wait until the visa number becomes available again in the future. Q: Can the family members stay and wait in the U.S. after their status expired while they wait for the visa number? A: No, unless they have a valid status of their own, they are not allowed to remain in the U.S.

The principal alien filed a labor certification or petition before April 30, 2001 and after a long delay in the labor certification process and immigration service I-140 and I-485 applications processing, my I-485 has been approved. My spouse and children will arrive here on September 30, 2005 on a dependent visa status. Once they arrive here, they will have to stay with me even after their status expires while they wait for the visa numbers. What will happen?

Analysis: Since the labor certification application or petition was filed by you, the principal alien before April 30, 2001, you and your family members are protected and grandfathered by Section 245(i). Unlike the principal alien, the family members are not subject to the physical presence requirement on December 20, 2000 for the benefit of 245(i) relief, and when the visa number becomes available, they will be able to submit their I-485 applications together with I-485A with the payment of $1,000 fine for each family members who are older than 14 years of age. This does not mean that they are not illegal aliens and they cannot be arrested and deported once they are detected. Accordingly, to get the 245(i) benefits, such family members should remain underground and not be detected by the law enforcement agencies or immigration officials. Caveat: Risk Involved: If they are arrested or voluntarily depart from the U.S. after unlawfully staying in the U.S. for 6 months or longer, depending on the period of overstay or unlawful stay, they will not be able to return to the U.S. either for 3 years or 10 years. Considering such huge risk, it may be better off that such family members return to home country before reaching 6 months of unlawful stay and wait in the home country.

My labor certification has just been approved and I received the approved labor certification on September 29, 2005. Can I file my green card application?

Analysis: Yes or No. If you have prepared all the papers for filing of I-140/I-485 for you and your family members before the deadline of the commercial overnight delivery services drop-off or pick-up time, you can file it. Usually commercial drop box deadline is 5:00 p.m. or 6:30 p.m. depending on the location of the drop boxes. If you miss the drop box deadline, then you can run to the local main station or international airport station of the Fedex or UPS or DHL and timely ship out even after the drop box deadline in the city or town. Remember that unless it is physically delivered to the Service Centers within September 30, 2005, Friday, your case will be rejected and you will suffer many years of delay to file your green card application.

My I-485 has been transferred to the local district office for interview and received a notice of interview date of October 3, 2005, Monday. Since they sent out notice before October 1, 2005, will I be O.K?

Analysis: No, and you will not be O.K. Even though chances are not too good, but, you or your legal representative can work on advancing the interview schedules before October 1. Some attorneys are working with other colleague attorneys who have an interview schedule for their clients before October 1, 2005 to switch the interview schedules with the consent of the local district office. Worth trying!

I-485 applications for my family and myself have been approved but we are still in India or China. Since the visa number will not be available from October 1, 2005, what happens if we return after October 1, 2005?

Analysis: When you return, you will not be admitted as any nonimmigrant (for instance, H-1B) nor advance parole. At the same time, you are still not considered a permanent resident until you are admitted to the U.S. as a lawful permanent resident. In normal circumstances, the immigration inspectors at the airport will allow you to come into the country on a "deferred inspection" or "parole" status just to allow you to appear at the local district office to complete the green card process. When the Service Center approved your application, they took out the visa number for you but the adjudication may not be completed in some situation until you return and complete the admission process at the local district office. It is thus critically important that you return to the U.S. before October 1, 2005 not to take any chances. The same is true with those who have been issued an immigrant visa before October 1, 2005. They should enter the U.S. before October 1, 2005.

I am in H-1B and filed a labor certification application about 365 days ago. Since the labor certification has yet to be approved, I cannot file my green card application for long time. I am approaching my six-year limit of H-1B. Can I extend the H-1B beyond six years even if the labor certification has not been approved and no petition or application is pending with the USCIS?

Analysis: Yes, you can extend your H-1B "indefiniely" in one-year increment until your green card is finally approved or denied.

When visa number will not be available for many years to come and I will not be able to obtain green so many years, why do I have to rush to file I-140/I-485 before September 30, 2005?

Analysis: A number of benefits are attached to the "pending" I-485. First, until I-485 is approved, even during the period of visa number unavailability, you can obtain and extend the EAD and Advance Parole indefinitely. Second, pending I-485, you are considered "lawfully present" in the United States without any nonimmigrant visa status. Third, after 180 days of filing I-485, even during the period of visa number unavailability, you can change employment to a same similar occupational classification. According to the recently released USCIS Bill Yates Memorandum, you can even change employment after passing 180 days even if the I-140 is yet to be approved "inasmuch as the USCIS determines that the original I-140 petition was eligible and approvable." Fourth, when you changed employment under the foregoing conditions, even if the employer of the original I-140 petition withdraws and revokes the petition, you can continue I-485 without being affected by the revocation of the petition. Fifth, if you woked illegally or overstayed less than 180 days and file I-485, all these violations will be forgiven under Section 245(k) of the immigration law. Once you pass the 180-day window, you will not be eligible for filing I-485 even if the visa number becomes available in the future. Sixth, once your I-485 application is in the pipeline, the USCIS will keep processing your application even during the period of visa number unavailability, such as fingerprinting, namechecks, security clearance, etc., and when your case approaches the visa number date, your case will be ready for approval by the agency. When you will have to wait and file I-485 after visa number becomes available, processing of your I-485 will be very, very delayed because nothing has been done with your case by the USCIS. There will be miles of difference when it comes to processing time of I-485 application between those who filed I-485 before the retrogression but have to wait for the visa number and those who have not filed I-485 and wait for the visa number. Seventh, your spouse and children can obtain EAD and advance parole and do not have to maintain any "nonimmigrant visa" status, if they filed I-485 with you before the visa number retrogressed. There are many additional benefits which only the I-485 filers can enjoy and non-I-485 filers cannot enjoy.

I am an Indian and my EB-2 I-485 is currently pending. Since EB-2 for India will retrogress several years, I do not want to wait that long. My spouse was born in the United Kingdom. Can I use cross chargeability and ask the agency to keep processing my I-485 application in October 2005 and on?

Analysis: Absolutely yes. You will have to make it sure that you meet the cross chargeability conditions, though.

Both my wife and I filed labor certification application. I filed a fast-track College faculty special handling labor certification application (EB-2) and based on quick certificaiton of the labor certification, we filed I-140/I-485 concurrently. My wife started very early a regular labor certification with an early priority date and, after the painful years of delay, has obtained the labor certification application approval and I-140 petition has also beeen approved later. Can we switch to her case without expensive refiling of I-485 applications? Visa number is available for her now.

Analysis: Under the USCIS policy, you and your wife can switch to her case "if" your I-140 has also been approved. If your I-140 has been approved, you should request the Service Center in writing to substitute the underlying I-140 petition of your wife for the pending I-485 applications for you and your wife. The Service will continue the processing switichng primary beneficiary from you to your wife and taking you as a derivative beneficiary instead of primary beneficiary. Caveat: Such substitution of I-140 will be available only during the time the visa number is available and the petition is valid.

My concurrent I-140 and I-485 are pending and I-140 has yet to be adjudicated. Would visa retrogression delay the processing of I-140 petitions?

Analysis: Probably not for a number of reasons. But most importantly, the USCIS is currently under the pressure of reducing processing times of all the petitions and applications to 6 months.

I filed EB-2 RIR on March 5, 2005 which is pending. My girl friend started labor certification early in 1999 and filed EB-2 I-140/I-485. Her green card may be approved in the near future. We are planning to marry soon. How our lives will change in the context of retrogression?

Analysis: Once you marry her before her I-485 is approved and you file your own I-485 before her I-485 application, you will be able to file "accompanying beneficiary" I-485. If you marry her before her I-485 is approved but your I-485 was not filed until her I-485 is approved, you can still file your I-485 as a "following-to-join" alien derivative beneficiary. In both of these cases, your priority date will be your wife's priority date which is 1999 under EB-2 category. If her I-485 application is already approved by the time you two marry, all the immigration benefit she will be able to give you is the Family-Based 2nd Preference Petition which is heavily backlogged. Assuming you marry her before her I-485 is approved and you file I-485 based on her EB-485 application, you may still want to keep your labor certification application alive as a back-up in the event that her I-485 is denied for whatever reasons. If her I-485 is denied, your I-485 will also be denied.

My EB-3 I-485 is currently pending, but because of the visa retrogression, I may face a situation involving relocation of my company to a different state or I take a similar or same job with a different employer in a different state which is not within the jurisdiction of the NSC where my I-485 is pending. Will my case be transferred to a different Service Center where my new job site is located?

Analysis: Assuming that 180 days have passed since you filed I-485, you can take a new employment in similar or same occupational classification in "any state or location" in the U.S. The relocation of your current employer to a different state takes place, your approved labor certification was considered "no good" in old days inasmuch as there no longer existed the labor certified job in the old site. However, thanks to AC 21 180-day rule, your employer and you can argue that you can take a same job in the different state after 180 days no matter whether it is the same employer or a different employer. When employment is changed to a different state that falls under the jurisdiction of a different Service Center, the Service Center where your I-485 is pending will complete the proceedings rather than being transferred to the new site Service Center. This is a big difference between the family-based I-485 proceeding and employment-based I-485 proceedings. In the family-based I-485 proceedings, if you move from one local district to another district, the district office where you I-485 is pending transfers the I-485 cases to the local distirct of office that has jurisdiction over the new residence of the applicant. In the employment-based I-485 proceedings, it is the policy of the USCIS to let the original Service Center to complete the proceedings.

My I-140 is either approved or pending but because of the visa number retrogressgion, I will not be able to file I-485 for many years. What happens with my green card journey if the company relocates to a different state before I can file a I-485 and the company does not have any project or work for the labor certified job?

Analysis: The approved labor certification is "employer-specific" and "location-specific." Unless AC-21 180-rule is available, any changes in employer and location of the job site will make the certified labor certification application "no good anymore." Accordingly, until either AC-21 180-day rule becomes available, the petitioning employer has to prove the existence of the labor certified job at the "specific location" and if the employer employer fails to prove it, the USCIS should deny either I-140 petition or I-485 application or both. AC-21 180-rule is a savior in this regard, but the visa retrogression will deprive a large of you of the opportunity to survive when such changes happen in the future.

My I-485 was transferred to the local district for interview and I completed the interview in September 2005. The interviewing officer told me that the visa number was not available at the time but as soon as the visa number would become available in October 2005, the local district office would approve my case. What happens with my case on October 1, 2005?

Analysis: If your priority date is later than the cut-off date in the October Visa Bulletin, the local district office will not be able to approve your I-485 and wait until your visa number becomes available, no matter how long it will take!

My employer filed I-140 petition for me and I expect that I will not be able to file I-485 application for a long time. Pending all these, my employer promoted me to a higher-level position which is a different occupational classification in DOT. How will this promotion affect my green card proceedings?

Analysis: People often confuse between the current job (a temporary job) and the future job (permanent job). USCIS Bill Yates admitted in a memorandum that the alien did not even have to work for the employer pending the proceeding inasmuch as the employer proves the existence of the labor certified "permanent" job. Accordingly, theoretically, one may argue that your new promoted job is a temporary job and once the I-485 is approved, you will be reassigned to your previous job. However, this sounds awkard that you will be demoted to lower-level position of lower-wage after so many years because of the approval of your green card. In this situation, the employer will have a difficult time to establish "existence of the labor certified permanent job."

My case was transferred to the local district office and I was interviewed by the officer on September 15, 2005. The officer said my case was approved pending the security clearance report from the security agencies. I am an Indian and my visa number will be retrogressed in October. Am I O.K?

Analysis: Probably not. The adjudicators do not take out the visa numbers at the interview when the security has been cleared, because if they do, they will have to start revocation proceeding once a negative security report is received later. What the officer said was that your case was approvable but for the security clearance. If the security clearance is not received by the officer before October 1, 2005, your case is likely to be shelved for visa numbers in the future. This question is repeated by the people over and over. Please remember that unless I-485 is actually approved before October 1, 2005, people will be subject to the retrogression and will not be able to obtain approval until the visa number becomes available for them again in the future!!!

My I-485 (EB-3) application is pending, but because of the retrogression, I-485 will not be approved for several years. I have already changed employer after 180 days of I-485 filing, but because of the anticipated long wait for the visa number, I may have to change employment again. My new job is not stable. Am I protected by AC 21?

Analysis: Yes, if you ported I-140 petition without flaws after 180 day of I-485 filing, change of employer will not affect your pending I-485, provided that the new job is same or similar occupational classification.

I filed I-485, and after 180 days, I changed employment and former employer is not happy. When should I file AC-21 change of employer notice to the Service Center? I am an Indian.

Analysis: Because of a huge retroression in EB-3, chances are that people may have to change employment in a lot of situation. AC-21 Act does not itself specify when such notice should be provided to the USCIS. The USCIS has encouraged proactive filing of such notice, but Yates memorandum does not penalize the aliens who fail to file such notice proactively. Consequently, it has been a common practice that people waited to receive a RFE to give such notice. Generally, when I-485 waiting time was short, this practice worked without any problem. However, when the waiting time can last years rather than months because of the visa number retrogression, failure to file such notice may present a number of practical problem, particularly in hostile employment separation situation. Firstly, since the USCIS sends all the communications to the legal representative of your employer, you are completely left in the dark, presenting a number of problems. The USCIS could have served RFE or NOID (Notice of Intent to Deny) or any other notices upon the company's legal representative. Because of the potential conflict of interest, the legal counsel may be reluctant to communicate with you, putting you in a vulnerable situation in the legal proceeding. Additionally, you never know what kind of action your former employer has taken against you as your employer was not happy with your departure from the employment. Secondly, from the perspectives of the USCIS, unless such AC-21 notice is given, their record will just reflect that your are still working with the employer. Accordingly, once the USCIS receives a request for revocation of the I-140 petition, they may either deny your I-485 or service the NOID on you. That will scare you to death. Thirdly, the former employer could withdraw the I-140 petition to file another I-140 for another employee for substitution of the alien beneficiary of the labor certification application. Assuming that the substituting employee is a non-Indian or non-Chinese, whose visa number waiting will be shorter than the Indians or Chinese, that employee's I-485 could be approved ahead of yours. At this time, there is unsettled legal issue of consequences of such I-485 employee's green card approval on your pending I-485. Since one certified labor certification application cannot produce two employment-based green cards, there will be a potential problem, especially when the USCIS is not aware that you have used AC-21 benefit of change of employment. For all of the foregoing reasons, you may consider filing a notice of AC-21 change of employment proactively. The situation may be completely different if you were separated from the employment amicably and peacefully with the employer. In the latter case, you can still wait to receive RFE rather than proactively filing such change of employment notice, even though there may be some problem of preserving the evidence of AC-21 eligible change of employment for a prolonged period of time even in the latter situation.

My Indian husband and I filed EB-3 I-485 applications. Sadly, we are not getting along well and physically separated. Since I-485 is going to take so long time, I will have to decide when this marriage should end. I want to know the different consequences of legal separation vs divorce on my pending I-485 application. I am currently working using EAD and Advance Parole.

Analysis: Sorry that your marriage is falling apart. Under the immigration law, the government cannot deny I-485 solely on the basis of "viability" of the marriage. Physical or legal separation creates the viability of the marriage. Accordingly, if your I-485 is approved after years of waiting, your green card will be considered valid and legitimate. On the other hand, if you get divorce, you will no longer be eligible for I-485 and face one of the two consequences. If the agency learns that you are divorced, they will deny your application. If the agency approves your I-485 without the knowledge of your divorce, your green card will remain revocable and the agency can bring a revocation proceeding to cancel your card if they learn that at the time they approved your green card, you were divorced from the primary beneficiary of the I-140 petition.

I filed concurrent I-140/I-485 and changed employment after 180 days, but at the time, I-140 petition was still pending. Since neither the former employer nor the company lawyer is willing to discuss about the status of my case and I have no information about my I-140 and I-485 including case numbers, I am scared to death. Otherwise, the change of employment complied with the AC 21 and the new job is same or similar occupation. Considering the long waiting time under the retrogression, I want to know what the options are.

Analysis: As we discussed earlier, your question is related to the issue of when the AC-21 porting should be reported to the USCIS. The retrogression of the visa numbers affected the whole dynamics of this issue. When I-140 was not approved at the time of porting, this issue becomes a really challenging issue because of the USCIS policy that if, without your knowledge, the RFE was issued, and your former employer either fariled to timely repond or responded but indequately or just responded that you were no longer working for the employer, the USCIS is required to deny the pending I-140 on the merits and deny your I-485. Since I-140 decision is delivered only to the company and the company lawyer, there is no way you can it out. However, since the USCIS would have denied your I-485 application simultaneously with the denial of the I-140 petition in this case, unless you have received a denial notice of I-485, the chance is that your case may be still pending unless you moved and the USCIS could not serve such notice. One risk when people like you is faced by changing employment before I-140 petition was approved is the potential denial of the pending I-140 petition by lack of cooperation or hostile reaction of the former employer or other eligibility issue related to the "employer qualification" such as financial ability to pay. Once the I-140 is denied, your I-485 will also be denied even if you changed employment after 180 days of I-485 filing. Strategically, it is better off that people who are in similar situation with yours promptly file a notice of substitution of legal representative and file "proactively" AC-21 porting and change of employer. If a RFE has not been issued, the USCIS has been instructed to approve I-140 petition assuming that the petiion is approvable or would have been approved had they adjudicated within 180 days of concurrent filing but for such issue as financial ability to pay or other issues related to a time after the filing of the I-140 petition. Accordingly, one will face less a chance to be issued a RFE to the former employer. Additionally, such filing will at least allow your new legal representative and yourself to keep up with the pending I-485 application. The I-140 petition decision will still not come to your new lega representative unless the former employer agrees to such substitution of the legal counsel, but you have a better chance to survice. This is a big difference in 180-day porting before and after the I-140 petition approval.

I filed concurrent 140/485 and changed employer, but employer has withdrawn the I-140 petition to take away my chance of getting green card. What happens with my I-485?

Analysis: You did not tell me when the I-140 was withdrawn. If it was withdrawn before your I-485 had reached 180 days, your I-140 petition is gone and your I-485 application will be denied. However, if the employer withdrew the I-140 petition after 180 days of your I-485 filing, it will have no affect on your I-485 application inasmuch as you changed employer for a job which is similar or same occupational classification.

I received in the mail from the USCIS that my I-485 had been denied because my I-140 had been revoked. What do I have to do?

Analysis: You will have to find out immediately why the I-140 petition has been denied. If it was denied because the former employer had withdrawn I-140 petition, there is nothing you can do about it if the decision was based on your employer's withdrawal before your I-485 had reached 180 days. However, if the employer withdrew after your I-485 reached 180 days, it is an error on the part of USCIS and you should immediately file a motion to reconsider since such withdrawal should not have affected your pending I-485. If you learned that I-140 was revoked for some reasons other than employer's withdrawal, such I-140 petition will become invalid, no matter whether such revocation was made before or after 180 days of your I-485 filing. I-140 could have been revoked for an issue of fraud or frivolous filing or detection of error of the USCIS decision in their initial decision of I-140 petition on the issues related to the eligibility of the I-140 petition. Such revocation can be made any time regardless of I-485 application time. Even though the denial of I-485 is not appealable, you can still file appeal of the denial of I-140 petition to AAO and once the USCIS revocation decision is overturned by AAO, the USCIS will reopen your denied I-485 and finish it up. Other option will be that you refile I-140 and I-485 application rather than appeal since the underlying labor certification application is valid "indefinitely" and remains valid even after the denial of I-140 and I-485. Of course, to take this option, you should have a valid nonimmigrant status at the time of refiling. One of the benefits of working on H-1B as opposed to working on EAD is this situation. If you worked on EAD and face such situation, you are not eligible to refile it as you will no longer be in a valid nonimmigrant status by the time the USCIS denied your I-485 application!

I filed I-485 application based on approved labor certification and approved I-140 about eight months ago. I know I can change employer under the AC-21 if the new job is same or similar occupational classification. But considering the terrible visa number retrogression, I am scared whether I will lose my priority date if I leave the current employer who filed the labor certification application. What do I have to do?

Analysis: I do not think you should worry about losing your priority date if you change employment after 180 days of I-485 filing. Porting under AC 21 does not take away your priority date.

I filed my labor certification application almost one year ago but not quite 365 days yet. I am about 20 days short to reach 365 days. My H-1B 6-year limit will however reach in 5 days. What do I have to do?

Analysi: Currently, USCIS allows H-1B people to file 7th-year extension even before they reach 365 days on two conditions: (1) The starting date of extended H-1B 7th-year extension must not be before reaching 365 days. Accordingly, assuming that your 365 days will reach in one month and you file now the 7th year extension with the starting date after one month, you meet this requirement. (2) At the time of your requested 7th-year extension, you should be in a valid H-1B status. In your case, your current H-1B status will expire in 5 days and your 365 days of labor certification will not reach until 20 days or later. There will be approximately 15 days gap. Because of this gap, you will not be eligible to apply for the 7th-year extension. Inasmuch as these two requirements are met, one can file the 7th-year extension before one reaches 365 days. Sorry. Please consider making a overseas trip to stretch out the time of reaching H-1B six-year limit.

My labor certification was filed more than 365 days ago and I have obtained approval of the labor certification application. However, the employer filed I-140 petition for a new employee substituting me as the beneficiary. Am I still eligible to apply for the 7th-year extension if this employer files another labor certification or another employer offers an H-1B employment?

Analysis: Under the current USCIS, when there is a substitution of the alien beneficiary for a labor certification application, only the substituting employee can apply for the 7th-year extension and the substituted employee is not eligible for the 7th-year extension based on the same labor certification application. Cabeat, though. If the substitution was completed before April 30, 2001, the original beneficiary keeps the priority date and the substituting beneficiary does not take over the priority date. It sounds very unfair to you in that the substituting employee steals not only your priority date but also 7th-year extension eligibility. There is nothing you can do about it until the USCIS changes its policy.

My employer may not be able to keep me for many years to come because of the business and I have been looking for another job. My I-140 has been approved and I-485 has been pending for more than 180 days. I am a Programmer-Analyst. The new job that is available now is a Database Analyst or Database Administrator. Can I take this job without jeopardizing my pending I-485 application?

Analysis: Under AC 21 Act, you can take a new job after 180 days of I-485 application but the new job must be in a same or similar occupational classification. Currently they determine the occupational classification based on DOT code or SOC code. Since the DOL has abandoned the DOT code for determination of occupational classification, it is likely that the USCIS will use SOC code. Under both DOT and SOC codes, Programmer-Analyst and Database Analyst or Administrator are not in the same or similar occupational classification. Accordingly, there is some risk if you take the new job.

I am a Chinese and obtained the PERM labor certification application about three weeks back. It is EB-2 job. I immediately filed I-140/I-485 concurrently since I-485 application was available until September 30, 2005. My wife was outside the country and returned to the U.S. a few days back in H-4 status. She has all the I-485 documentation prepared but I have yet to receive the Receipt Notice and I do not have a Receipt Number. What do I have to do? Tomorrow, September 29, 2005 is the last date to ship out I-485 via overnight delivery to the Service Center.

Analysis: The Service Centers are not equipped to match a new filing with an existing file by name only and filing wihout inter-linking her application to your file is likely to be rejected. They need your case number. You may have two options under the circumstances: One is you refile your I-140 and I-485 together with your wife's I-485 application within tomorrow, September 29, 2005. The other option is to run to the bank whose checks you used to pay the filing fees and inquire whether the checks have been cashed. If they did, ask them to give you a copy of the cancelled checks immediately. On the rear side of the cancelled checks, you will find your case number either stamped or written by the Service Center. Use this case number and file your wife's I-485 application requesting the Service Center to "Inter-file" to your case number. However, in the worst case, if you are willing to risk wasting filing fees, you should also file tomorrow your wife's application since, otherwise, she may not be able to file I-485 application for a long period of time!

I have just obtained the long-awaited labor certification application of EB-3. Do you think I can file the concurrent I-140/I-485 tomorrow, September 29, 2005?

Analysi: The discussion in this Q&A on filing of I-485 before October 1, 2005 is limited to EB-1 and EB-2 cases. Currently EB-3 is completely unavailable until September 30, 2005. On October 1, 2005, depending on your priority date, you may or may not be able to file your I-485 application since the visa number is available but there will be a cut-off date.

The whole family of mine have just been granted EB-485 applications, but our oldest son is stuck with some technical documentation process. He will reach his 21st birthday in November 2005. What will happen with his case? Our case is Indian EB-2 and not likely to see our visa number available for a while.

Analysis: If visa number is available, the USCIS can "expedite" and complete the processing before he reaches 21 years of age. However, since the visa number is not available, they cannot adjudicate your son's case at all, at least until the visa number becomes available again for him. The problem is that once he reaches 21 years of age, he will not be eligible for I-485 "unless" he is protected by the Child Status Protection Act (CSPA). You should seek legal counsel to see whether your son's case is covered by the CSPA. Otherwise, sadly once he reaches his 21st birthday, he will lose the eligibility for the pending I-485 application and his 485 application will be denied.

I am a Chinese woman professional. I and my husband filed EB-1 140/485 concurrently in May 2005. I am the primary applicant. My 485 has been approved and I have already received the card. However, my husband's case is still pending. He is on his own H-1B right now. I have the following questions: .

Q-1: Due to the retrogression kicking in on Oct. 1st, how can he keep his status? Has he have to keep his H-1B in order to stay in US legally?

Analysis-1: The I-485 applicant, including the derivative beneficiary, is authorized to stay in the U.S. pending I-485 application without any nonimmigrant status. Accordingly, he can keep staying and waiting in H-1B status or if has a valid EAD, he can keep extending the EAD until I-485 is approved. Had your husband been in H-4 status, by the time the USCIS granted you a permanent resident status, he would have lost his H-4 nonimmigrant status and his only option would have been to remain in EAD.

Q-2: Since he filed 485 with me together, he also belongs to EB-1 category. If he wants to change his job, does he have to stay in the same or similar field?

Analysis-2: No. He is not the direct beneficiary of the EB-1 I-140 petition and he is not subject to the requirement of any specific employment or for that matter any employment at all. If he possesses a valid EAD, he can work any job and anywhere or he can just stay home without employment.

Q-3: He has EAD card. If he uses EAD card to work, does he have to stay in the same field?

Analysis-3: Again, he can do whatever he wants, either work in the same filed or even cook hamburgers in McDonald! One cabeat, though. If he works in H-1B and uses EAD for the second job, he'd better drop the H-1B employment or not work for the second job using EAD. By working in a second job, he violates the H-1B status and his pending I-485 will be denied. If he want to change job or take a second job while waiting, make it sure that he drop the H-1B status.

Q-4:. If he uses his H-1B for now, but if he decides to use EAD later, what happens if his EAD has already been expired? Can he still apply EAD? Does EAD allows the gap between
first EAD and second EAD?

Analysis-4: He can apply for EAD anytime. If he decides to change the basis of employment authorization from H-1B to EAD, he should keep in mind two things to save his I-485. First, he should apply for EAD early enough, so that he carries a valid EAD when he decides to change the status. Second, once he starts working on EAD, he should maintain a "valid" EAD without any gap. Accordingly, he should apply for the extension of EAD, early enough, at least four months before the current EAD expires. For whatever reasons, there has been created a gap between the two EADs, he should stop working during the period of such gap and the employer's payroll record must reflect termination of employment during the period of such gap.

Q-5:. After I get my green card, do I still have to stay in the same or similar field?

Analysis-5: I do not know whether it was a self-petition or employer-petition EB-1, but in either situation, since you were granted a permanent resident status because of your extraordinary worker status, you may want to work in the field for a while. I would not recommend you to go to McDonald and start cooking hamburgers or work as a housemaid in Bush Whitehouse.

I am an Indian Physical Therapist and filed concurrent I-140/I-485. I-140 petition was approved, but I-485 was transfered to the local office. The local office interviewed me afterwards, but the officer did not decide my I-485 at the end of the interview. I do not know whether my lawyer filed Scheduled A I-140 petition or regular labor-cerification based I-140 petition. Will I be subject to the India EB-3 visa retrogression?

Analysis: Most likely, your lawyer must have filed Schedule A I-140 petition without going through the recruitment process. If yes, then you will not be subject to EB-3 retrogression. You have a separate classification in the Visa Bulletin. This classification is "current" now as the law allocated the 50,000 recaptured visa numbers. We do not know how long it will take to exhaust the recaptured numbers, but it is anticipated that the number may run out much faster in FY 2006 than FY 2005 because of the EB-3 visa number retrogression. When EB-3 number was not retrogressed, some of the Schedule A people were first processed under EB-3 so that they would not take out specially recaptured number of 50,000. However, the situation changed in FY 2006 and the Schedule A immigrants can be processed only under the Schedule A classification and can exhaust the special recaptured number in a faster pace. If your lawyer, for whatever reasons, filed the labor certification application and based on this certified labor certification, filed I-140 petition, then you are subject to the EB-3 retrogression and the USCIS will not be able to approve your case for a long time. You should contract your lawyer to learn the immigrant visa classification in your case.

I am an Indian and married to an Indian citizen wife who was born in Paris, France. My EB-2 labor certification has just been approved but I cannot file EB-485 application because of the visa retrogression. What do I have to do?

Analysis: When your spouse was born in a foreign country and there is no visa retrogression for EB-2 category for your spouse's country, you can be charged to France and both you and your spouse can file concurrent I-140/I-485 in October 2005. This alternative chargeability rule is applicable only if you and your wife are admitted to the permanent resident status "simultaneously." Accordingly, the following-to-join spouse cannot give you this alternative chargeability benefit. Since your spouse is currently living with you as an Indian but born in Paris, France, and both of you are ready to file the concurrent I-140/I-485 right away, you will not be subject to the Indian EB-2 visa retrogression. France is a part of the Worldwide chargeability in the Visa Bulletin. Congratulations! Please go ahead and file the concurrent I-140/I-485. Make it sure that on your cover letter and both I-140/I-485, you write in color bold pen "Alternative Chargeability to France."

I am a Chinese woman who is married to a Software Engineer who is a citizen of China but was born in Singapore. My husband's EB-2 PERM application is just approved and he is planning to file I-140/I-485 concurrently. Since I am a wife who was born Shanghai, China and is currently a citizen of the People's Republic of China, we wonder whether I can also file my I-485 as a derivative beneficiary. We are terrified at this time. Please help!

Analysis: Don't be afraid. You are O.K. You are eligible for alternative chargeability to your husband's place of birth, Singapore. The rule requires two conditions for the derivative spouse to be charged to the principal beneficiary's country(your husband): First, the visa number should not be available to your country of birth (China) now. Second, you must be eligible for filing I-485 as either an "accompanying" spouse or a "following-to-join" spouse. Following-to-join spouse is the spouse who was acquired as a spouse by the principal beneficiary before his green card is granted but filing separately after the principal beneficiary spouse's green card is granted. You are defined as an accompanying spouse since you were married to your husband not only before he is granted a permanent resident status but you are filing green card application before he is granted a permanent resident status. Accordingly, you will be charged to your husband's place of birth, Singapore, and both of you will be able to file concurrent I-140/I-485 anytime in October. The fact that both of you are currently citizens of the People's Republic of China does not change your entitlement to this alternative chargeability. Good luck!

I am a Chinese software engineer who filed EB-2 labor certification application. This application has just been approved. Currently, the cutoff dates for EB-2 and EB-3 are same, May 1, 2000. I am a little bit worried that since so many Chinese are going after EB-2, EB-2 cut-off date can be worse than EB-3 for China. Is there any way I can protect myself?

Analysis: Indeed, one time EB-2 was worse than EB-3 for China not too long ago in the U.S. immigration history. At the time, there was no I-140/I-485 concurrent filing available and the Chinese filed two petitions based on single EB-2 certified labor certification application. If the certified labor certification requires EB-2 qualification background, you can file both EB-2 I-140 petition and EB-3 I-140 petition. Under the USCIS policy, if you have two approved I-140 petitions and your concurrently filed I-485 is pending, you can switch around by asking the USCIS to replace the underlying I-140 petition which was filed with I-485 by another approved I-140 petition which is more favorable in the visa number availability. Since you have a certified EB-2 labor certification application, it will only cost you $190 more to file EB-3 petition as a backup against the development of heavier visa number retrogression for EB-2. If you have not filed any petition yet, you can submit both EB-2 and EB-3 petitions simultaneously. If you have already filed or obtained approval of EB-2 I-140 petition, you can still file EB-3 petition using the same labor certification application. If both EB-2 I-140 and I-485 are pending, you can still file EB-3 using the same labor certification application. In this case, the approved EB-3 I-140 petition will remain a stand-alone petition which is not related to the pending I-485 application. Sometimes, people attempt to file multiple I-485 applications, one each application for one I-140 petition. Legally, the multiple I-485 applications can be sustainable. But it may constitute a waste of money and energy when the underlying I-140 petition can be substituted for pending I-485 application. It may be a better idea just to file one more I-140 petition, this time for EB-3. You may want to discuss with your lawyer whether it would be a good idea to make a standard practice, during the heavy visa number retrogression, to file both EB-2 and EB-3 petitions simultaneously once you receive the EB-2 labor certification approval in the future.

I am an Indian and my labor certification was approved in May 2004. I immediately filed concurrent I-140/I-485 which are currently pending. My I 140 petition was approved in September 2004. In June 2005, I changed the employment of a same occupational classification. I have just learned that my former employer had withdrawn the I-140 petition in October 2004. I know I am O.K. as far as pending I-485 application is concerned. However, I am terrified that my priority date was lost because of the revocation. What would be my priority date at this point?

Analysis: Under the rule of the priority date retention, once the approved I-140 is revoked, the alien beneficiary does not retain the priority date. The withdrawal of I-140 petition constitutes an "automatic" revocation under the immigration statute and the revocation takes effect upon receipt of withdrawal and agency notice. It appears that this raises a serious question of the effect of employer's withdrawal of the approved I-140 petition after 180 days of I-485 filing. This question remains a grey area in the interpretation of the AC 21 Section 106(c). Relevant to this question is the legislative intent of Section 106(c) of AC 21 as related to the question of whether Section 106(c) of AC 21 overrides the immigration regulation which provides that the alien beneficiary does not retain the priority date if the petition is withdrawn and revoked. It should be kept in mind that Section 106(c) provides porting of I-140 petition and not I-485 application. Again, it is not I-485 which is ported but it is I-140 petition which is ported. Under this provision, I-485 is not affected when I-140 petition is ported and the law must assume that the ported I-140 petition remains valid. This theory is supported by the current policy of USCIS which is enunciated in the Yates Memorandum which states that the I-140 becomes invalid in one of the two situations: (1) Either I-140 is withdrawn before the alien beneficiary's I-485 has been pending 180 days; or (2) the I-140 is denied or revoked "at any time" except when it is revoked based on a withdrawal that was submitted after the I-485 application has been pending for more than 180 days. In other part of the Memorandum, Mr. Yates also stated that priority date was not affected by porting under Section 106(c) of the AC 21. Yates Memorandum also states that no matter what happened with the I-140 petition, when the alien ported after 185 days of I-485 filing, the USCIS should still go back to the pending (yet to be approved) I-140 petition and adjudicate the pending petition. If they find out it was not approvable at the time of I-140 filing, they were required to deny the pending I-140 petition and related I-485 application. Analogy is found in other section of the AC 21 as related to H-1B porting. When an H-1B alien changes employer who files a new H-1B petition and ports, it is the underlying exiisting valid H-1B petition which is ported. It appears that once the H-1B alien ports, the law assumes that the existing H-1B remains valid for the remaining period of I-94 and it will not be affected by the old employer's withdrawal of the H-1B petition. Different lawyers may have a different view and you should seek legal counsel from your own lawyer. This Q&A is not a law but just an opinion which does not have a legally binding force. You are reminded that you should never act purely in reliance on information on the internet, including this web site. There is a disclaimer in each site.

I am an Indian software Engineer. I filed the labor certification in May 2001 in EB-3 category. I currently reside in India. I moved back to India about six month ago because of the long delay in the immigration process and visa retrogression. I have just learned from my former employer that my case has been certified by the Philadelphia Backlog Processing Center. My H-1B visa has expired. My employer has a project for me. I have two questions. Currently, H-1B visa number is not available until October 1, 2006. How can I get back to the United States now? As for the I-140 immigrant petition, what's hurry to file this petition when the visa number availability will be years away?

Analysis: The answers to both of your questions should be absolutely positive. First, you are eligible for H-1B visa application. If you had stayed in the U.S. for less than six years at the time you left here and you have been staying in India for less than one year, you are not subject to the H-1B annual cap and despite the current H-1B visa number unavailability, your employer can file H-1B petition for you and once the petition is approved, then you can return on a H-1B visa. Once you return, you can extend your H-1B indefinitely in one-year increment until I-140 petition is approved and once I-140 is approved, then you can extend your H-1B in three-year increment indefinitely until the visa number becomes available and your I-485 is filed and approved. If you passed H-1B six-year limit by now, you can still apply for H-1B visa without being subject to the H-1B annual cap. Since your labor certification application was filed more than 365 days, you are eligible for the 7th-year extension of H-1B under AC 21 Act. This 7th-year extension eligibility is available not only in the U.S. but also in the consular nonimmigrant visa application proceeding. As for your second question as to why you should rush in filing I-140, it is to take advantage of the benefits which will be attached to you once I-140 petition is approved. Two foremost benefits, among others, are: (1) Eligibility for H-1B extension in 3-year increment. This will save you and your employer a lot of cost and avoid the hastle of filing H-1B extension every year. (2) Retention of priority date. Under the priority date retention rule, once I-140 petition is approved, you retain the priority date, which can either be transferred to another approved I-140 petitions or another employer-filed I-140 petition inasmuch as the petition is not revoked by the employer. Until I-140 petition is approved, your priority date which was fixed by the date of filing of labor certification application will remain vulnerable if your situation changes. Accordingly, the answers to your questions are: You can come back anytime now and your employer should file I-140 petition immediately. If your job is not located in the Nebraska Service Center jurisdiction, the approval of I-140 petition currently takes less than from two to five months. If your job is located in the NSC jurisdiction, please beware of the terrible backlog of I-140 petitions.

My EB-3 I-485 is pending. My wife and I filed the I-485 based on my EB-3 labor certification. I was born in India and my was born in Malaysis. The October Visa Bulletin shows that my cut off date is January 1, 1998 and my wife's country (worldwide) cutoff date is March 1, 2001. The I-140 petition priority date is based on Indian visa numbers. I would like to change that using my wife's country of birth, Malaysia. How do I have to that?

Analysis: For you to be charged to Malaysia, the visa number for Malaysia must be available. Since the EB-3 visa number for Malaysia is also not available for your priority date, there is nothing you can do. You will have to wait until the worldwide cut off date moves to your priority date and write the Service Center where the case is pending to charge to both you and your wife to Malaysia and process the pending I-485 applications of yours and your wife's.

My I-485 has been pending more than 180 days and I am about to change the employment. However, due to the cumbersome rules involving interpretation of "jobs of same or similar occupations" and need to have new employer sending AC 21 letter to USCIS, I am scared that the new employer may screw up and I may suffer irreparable damage such as loss of priority date, etc. I wonder whether I can send the AC 21 evidence rather than the employer should do it. What do I have to do?

Analysis: Your understanding is wrong. It is you who will have to collect the required documents from the new employer and submit it to the Service Center where your I-485 is pending. Your new employer is not a party to this immigration proceeding. They are not taking over the I-140 petition nor are they the petitioner in your green card proceeding. In I-485 proceeding, you are the party to the legal proceeding and you will have to prove that you met the legal requirements for AC 21 porting. Your employer is just hiring you as a new employer based on your EAD or H-1B. They are not involved in your green card proceedings. Often, there is some misunderstanding on the part of your employer, particularly your employer lawyers, as though that the new employer must represent you before the USCIS for your pending I-485 application. That is absolutely false. They are not substituting approved I-140 petition, nor are they petitioner of any I-140 petition. They happened to be a new employer and are asked by you to write a letter on your behalf attesting to the facts, terms and conditions of your employment. Nothing else. People should watch out aginst such abuse by the new employers and their lawyers.

My I-485 is pending and I know that I will have to wait quite a long time before the visa number becomes available for me. Last summer, I visited Canada for a sightseeing in Niagara Falls and other places in Canada. My visa in the passport was F-1, but I had a H-1B approval notice which was valid until May 25, 2006. Since I could visit either Canada or Mexico without a valid visa inasmuch as I carry a valid H-1B nonimmigrant status approved by the USCIS, I thought I would not face any problem in returing to the U.S. Unfortunately, I learned, upon returning to the U.S., that I was not carrying the passport and the I-94. Considering the circumstances, though, the immigration inspector issued me a new I-94 which was valid only for one month. I resumed the H-1B employment. My EAD had already expired by then and the H-1B was the sole permission to work in the United States. What do I have to do with the one-month valid I-94 which I received at the border?

Analysis: Under the automatic visa revalidation program, nonimmigrants can visit the border countries (Candada and Mexico) without a valid visa inasmuch as you have a valid I-94 and valid passport and you return within 30 days without stopping by the American Consulate to apply for a visa stamp. Accordingly when you travel, you should keep your valid I-94 and should not surrender the I-94 at the time of departing from the U.S. When you return, you just show the valid I-94 without a new I-94 being issued and you return to the U.S. Unfortunately, that is not what happened in your case. The immigration official issued you a new I-94 (H-1B) which was valid only for a month. Accordingly, your H-1B work permit lasted for only one month because you were admitted only for one month. The officer probably issued you one-month valid I-94 to allow you to go home and locate your passport and I-797 H-1B approval notice and either make another trip or visit CBP office in your area to correct the I-94 within one month. If you had a valid EAD, you could probably continue working for the employer. However, in your case, nothing of all of these happened. Your problem is so-called "last action theory" in the immigration law in this country. Your nonimmigrant status is controlled by the I-94 which was "last" issued by the immigration authorities. In your case, the last I-94 which was issued by the immigration official was the H-1B approval notice issued by the Service Center had you not made the trip to Canada. Should you have returned with the Service Center issued I-94, your H-1B status would have continued until the expiration date of that I-94. However, in your case, an immigration official issued you a new I-94 which was the "last action" of the immigration authorities to determined your permitted stay in the U.S. Accordingly the employment you continued after one month of your return to the U.S. without a valid H-1B or EAD may be considered unauthorized employment which will affect your pending I-485 eligibility. As people like you may have to wait a long time until the visa number becomes available and may have to make a trip to Canada or Mexico or Caribbean Islands for pleasure, you should be careful not to violate this rule and jeopardize your pending I-485 application.

I have a labor certification application filed by another employer more than 365 days past which is still pending. However, I am currently working with another H-1B employer that also filed a labor certification application on my behalf only six month back. I am approaching H-1B 6-year limit. Can I file the 7th-year H-1B extension through my current H-1B employer?

Analysis: Yes. Inasmuch as a labor certification has been pending more than 365 days with any employer, another H-1B employer can file my 7th year extension. There is no requirement that the 7th-year H-1B extension be filed only by the employer that filed the labor certification application which passed 365 days.

I filed concurrent I-140/I-485 about 9 months ago and am currently stuck with the visa number retrogression. However, the fact of matter is that my employer lost a big client and had to let me leave the job five months after I filed the concurrent application. The employer was very sorry about the change of events and decided not to withdraw the I-140 petition. Since 180 days have passed after I filed I-485, I ported to another employer in New York and am currently working in the similar occupation. I have been very worrying about the future of my I-485 application since I do not know whether my loss of the labor certification job before 180 days of I-485 filing will make me ineligible for the pending I-485 application. Please help me.

Analysis: This issue had remained one of the grey areas until the USCIS clarified on the AC 21 policies not too long ago. Under the current policy, your pending I-485 application will not be affected even if you had to change a job before 180 days inasmuch as your employer did now withdraw and revoke the pending I-140 petition and at the time of filing I-140/I-485 package, the underlying I-140 petition was approvable, and there was indeed a good faith permanent job offer and you also truly intended to work for this company. It was a turn of event which developed beyond your control and you had to leave the job. Therefore, even if the I-485 adjudicator will find it out at the time of decision of your I-485 that you left the employment before 180 days and you submit a good evidence upon the officer's request, the officer should not deny your I-485 application solely based on your departure from the employment before reaching 180 days of I-485 filing. Considering the fact that the visa retrogression may require you to wait a long time to reach the adjudication of the pending I-485 application and the sources of evidence can be lost in the future, your job is to collect and preserve the evidence that you departed from the employment because of the event which developed beyond your control and both you and your employer had intended to employ you permanently at the time of I-140 petition filing once the green card application would have been approved. The statement of this former employer alone may not be sufficient. Keep the evidence that evolved the change of circumstances to defend yourself when time comes. Good luck.

My I-485 is currently pending and I am working for another employer. I ported one year after filing I-485 application because the new job paid me better and was located in San Francisco that would present a better opportunity for my future career, Software Architect. Now it happened that I was not happy with the new job and another employer offered another job which I took. Will my I-485 application be in trouble?

Analysis: No, provided that both jobs were in same or similar occupational classification. The real important point for I-140 portability is that at the time of the USCIS' decision, you show that you are working with an employer for a job which is same or similar classification and it is not a short-term temporary job.

I am a poor and miserable I-485 waiter (EB-3) from India. Last year, I visited my home country to see my ailing mother using Advance Parole. When I first came to the U.S., I entered on a 10-year valid visitor's visa. I changed the status to H-1B afterwards. After filing I-485, I started using EAD and did not extend my H-1B. When I arrived at the airport in Minneapolis, I learned that my advance parole was not in my possession, but luckily I still had a valid visitor's visa. I then entered the country using the visitor's visa. Since then, I have been working using the EAD. However, somewhere back of my mind, a suspicion has bothered me as to whether this event would haunt me down the road. Please help.

Analysis: You have two problems. One is that you entered the country as a visitor without employment authorization and worked illegally. This is a ground for deportation. Your I-485 application can also be denied on this ground alone. Secondly, you entered the country neither on H-1B status nor Advance Parole. Once you enter the country without H-1B or L-1 or Advance Parole, your I-485 application is considered abandoned and at the time of adjudication of your 485 application after the visa number becomes available, your I-485 application is likely denied. EB-485 applicants should never travel on any nonimmigrant status other than H-1B or L-1 or Advance Parole. All other travels are considered abandonment of I-485 application.

I filed concurrent I-140/I-485. Pending the proceedings, I obtained EAD and did not extend my H-1B status. However, to my surprise, my I-140 was denied on the issue of employer's financial ability to pay the proffered salary. When I-140 was denied, the Service Center also denied my I-485. I then filed appeal of the denial of I-140 petition to AAO. Since the appeal to AAO takes a long time, I wonder whether my unlawful presence clock would start ticking and if I will have to leave the country because of the dismissal on appeal after 180 days, I will not be able to come back to the U.S. for three years.

Analysis: Denial of I-485 is not appealable to AAO under the rules and if you did not have any valid nonimmigrant status at the time of denial of your I-485 application, the unlawful presence will start ticking. If you then win on appeal, the USCIS may reopen the decision of denial of I-485 application either on its own motion or on your motion to reopen. Once motion is granted, the USCIS will adjudicate the pending I-485 application. If you lose on appeal and it passed 180 days, you are subject to the three year bar. Your case gives a valuable lesson to your colleagues who file a concurrent I-140/I-485. The lesson is that it is extremely risky that you abandon H-1 nonimmigrant status and start working on EAD before I-140 is approved, because once your I-140 is denied and simultaneously your I-485 is denied, your stay in this country becomes "unlawful and unauthorized," and you lose any priviledge to stay in this country at that point. Keeping your H-1B status at least until I-140 is approved is very important for the two reasons: (1) Even if your I-485 is denied, your nonimmigrant status (H-1B) is not affected and you can try again filing another I-140 petition or start all over again. If you file an appeal, throughout the appeal process, you maintain a nonimmigrant (H-1B) status and even if you lose on appeal, you can keep staying on a valid H-1B and try again. (2) The second important reason is that under the current USCIS policy, even if your I-140/I-485 is denied, if you maintained a valid H-1B status, you remain eligible for r 7th-year extension of H-1B indefinitely even during the period of the AAO appeal. Considering the fact that AAO decision takes a long time, this 7th-year extension eligibility is a very important tool for you during the period of appeal. For these reasons, people may not start working on EAD when they file a concurrent I-140/I-485 at least until the I-140 petition is approved. Very, very important to remember!

I have just received I-485 approval notice, but my wife's 485 is still pending and stuck with the visa number retrogression. We know that it will be several years before she can get I-485 approval because of the visa retrogression. I am anticipating to relocate from New York to Califonia because of the change in the job. I wonder whether it will complicate my wife's pending I-485 because of the change of the Service Center and the need for transfer of the file from one Service Center to another Service Center.

Analysis: The difference of USCIS practice between the family-based I-485 and the employment-based I-485 is that when people move pending I-485, the case must be transferred to the new jurisdiction of the new residence in the family-based immigration cases, but the same is not true with the employment-based I-485 cases. The Service Center's jurisdiction is determined by the location of the direct beneficiary's job location and I-140 and I-485 are filed with the Service Center that has jurisdiction over the job site rather than residence. Once the application is filed, the case remains under the jurisdiction of that Service Center even if you and your wife move out of that jurisdiction. Once the address change is filed with the Service Center, they will even schedule fingerprint appointment with Application Support Center in your area of new residence. The difference between employment-based vs. family-based I-485 jurisdictions comes from the need for interview in the family-based I-485 cases. Accordingly, the case must stay in the jurisdiction where the applicant actually lives in the family cases. Unless this policy and practice change in the future, your wife's file will not be transferred to California Service Center and the Vermont Service Center will finish it up when the visa number becomes available.

My husband filed concurrent I-140/ I-485 application in EB-2 category. I filed the same as the accompanying spouse. We are Chinese and currently EB-2 visa number is retrogressed to 2000. My husband's I-140 petition has yet to be approved. As I see it, my husband's employer business has been suffering bad, and we are scared to death to read your Q&A posting on this issue, not knowing what would happen if the I-140 is denied on the issue of financial ability to pay. I was H-4 but have switched to EAD for employment. I have been working earning a substantial income using EAD. However, against the risk that I will face once my husband's I-140 is denied, I want to change my status from EAD to H-4 without leaving the country. My husband has been maintaining a valid H-1B status. Can I do that?

Analysis: Once a H-4 alien starts employment using EAD, the alien loses H-4 visa status and such alien is not considered in any nonimmigrant status. However, pending adjudication of I-485 application, the alien is considered "authorized to stay," and remain legal. Authorization of stay is distinguished from 'nonimmigrant status' and under the immigration law, and an alien without in a valid nonimmigrant status is not allowed to apply for change of status in the U.S. In fact, you are considered not in a nonimmigrant category, and you cannot file an application to obtain any nonimmigrant status, including H-4, within the United States. In order to regain H-4 status, you will have to leave and return with a new I-94 in H-4 classification at the airport. This is possible only if you have a valid H-4 visa stamp in your passport and your husband still maintains a valid H-1B status. If your H-4 visa has expired, you will have to apply for the renewal of H-4 visa stamp in your passport to return to the U.S. in H-4 visa status. If you are successful in this, you will be safe even if your husband's I-140 petition is denied. You should, however, never leave the country if you are subject to either 3-year bar or 10-year bar.

I came to the U.S. from China to work for its parent company in San Francisco. My employer in China is a subsidiary of the current employer in San Franciso. In China, I was in charge of management of the company's financial activities and my job title was Financial Controller. I was then transferred to the parent company in San Francisco to oversee the U.S. parent company's financial actities in Asia. My job title is a Financial Manager for Asian Operations and my visa status is L-1A Multinational Corporate Manager. I then filed EB-13 I-140 and I-485 as a multinational corporate manager which is currently pending. My I-140 has yet to be adjudicated. Problem is my current U.S. employer is about to sell its operations in China. If it happens, the company in China and my employer in the U.S. will no loner be in parent-subsidiary relationship. I am extremely concerned because it can jeopardize the EB-13 petition which needs a proof that the two companies are related. I will reach 180 days of I-140/I-485 filing in a matter of a few days. There is another company in New York city that is willing to offer me a financial manager position for its overseas operation in Europe. This company is in garment industry but my current employer is in high tech industry. What happens if my current employer's sale of its Chinese operation is completed and they lay me off in the U.S. Will taking the job offer in New York City will save my pending I-140/I-485?

Analysis: Lord, you are trapped in such a complicated spider-web. For you to maintain the L-1A nonimmigrant status, the two companies in China and the U.S. must keep either a parent-subsidicary or a branch or an affiliate relationship. Once such relationship is broken, you lose your L-visa status. Since your I-140 was filed for EB-13(Multinational Corporate Manager) based on such relationship, once such relationship is broken, your U.S. employer is no longer eligible for the pending I-140 petition and your I-140 along with your I-485 should be denied. However, you are currently given a chance to port to a similar or same occuaption by another company in New York city. Accordingly, once you pass 180 days of I-485 filing, you will be able to take this job without jeopardizing your pending I-140/I-485. It is true that the job is located in a different city, the employers are doing complete different line of businesses, the involved international operations also complete different, Asia vs. Europe, etc. Good thing is that from the perspectives of AC 21 porting, location or line of business of employers are all not relevant. All that matters is whether two jobs belong to a "same or similar occupational classification." The USCIS determines the same or similar occupational occupations based on the labor department's Dictionary of Occupational Titles (DOC) or SOC/OES Codes which employers use to file a labor certification application. It appears to this reporter that your current job in San Francisco and the new job in New York City appear to be in a similar occupational classification. Under the current USCIS AC 21 policy, you are permitted to take a new employment with an unrelated company in the U.S. even though the I-140 you filed required the relationship between a foreign company in China and your current employer in the U.S., inasmuch as the two jobs belong to a same or similar occupational classification. However, there are a few things you should follow through such that your pending I-140/I-485 is not affected by your porting to an employer in New York City. (1) First, since your I-140 is still pending, you should be assured that at the time of filing of the I-140 petition and porting, you were eligible for the multinational corporate manager petition, including your manager record for one year or longer in China and your manager position in San Franciso, and the corporate relationship of either parent-child or brother-sister between the company in China and the U.S. The USCIS will adjudicate this issue when your visa number becomes available and they adjudicate your I-485. If there was a flaw in the petition, they will deny such I-140 petition and simultaneously deny your I-485 application. (2) Second, your new employer in New York city will not be able to file another L-1A nonimmigrant petition for you since you are not eligible for such nonimmigrant status. Thus, unless you have in your possession a valid EAD, you will not be able to work for the new employer. You should never start working for the new employer until you get an EAD. (3) As it was discussed in another question in this thread of Q&A, since your I-140 has yet to be decided, you should be aware that if you work on EAD without any nonimmigrant status and your I-140/I-485 is denied, you cannot stay in the U.S. In this regard, keeping a nonimmigrant status rather than using EAD may be very important for those who port while I-140 is still pending. You may talk to your new employer to see whether they are willing to file a H-1B petition for you. If you earned a master's degree in any fields in the U.S., you can still file your H-1B petition regardless of the H-1B cap. As I stated at the beginning, your situation involves extremely complex facts and you should seek legal counsel and should not rely on internet information, including this Q&A. After all, you are a multinational corporate manager, and you are not going to attempt to save a few bucks by handling such complex legal matter on your own with the potential deadly consequences on your green card journey, are you?

My employment-based I-485 has been pending for a while. My H-1B is still valid, but I filed and obtained EAD and Advance Parole. Do you think I am no longer in a H-1B nonimmigrant status?

Analysis: Your H-1B nonimmigrant status is not affected by applying for and obtaining an EAD and Advance Parole. It is the "use" of the EAD or Advance Parole that takes away your H-1B status. How do I know I used the EAD? You use the EAD in one of two contexts. One is that you use EAD with the same employer (H-1B) and your employer amends the form I-9 to change the employment authorization basis from H-1B to EAD for your payroll record, which you sign. The other situation is you use the EAD to work for a second or third job outside of the H-1B employment. In that case, even if you did not change the record of I-9 with your H-B employer, you lose your H-1B status. Once you lose your H-1B status, unless you leave and return with a new visa or a new H-1B I-94, you cannot reinstate the H-1B status. Again possession of the EAD and Advance Parole may be very important as a back-up when the situation changes, but until you use it, you will continue the H-1B nonimmigrant status. Drawback of working on EAD rather than H-1B is that you fall completely out of status when I-485 is denied, but such disadvantage is sometimes offset by disadvantages that comes with the continuing H-1B employment with the violation of Labor Condition Application or H-1B regulation, for instance, wages or locations, etc. When you work on H-1B pending I-485 application, you will have to comply with the H-1B regulation and LCA terms. If you violate such terms and regulations, you will not be eligible for I-485 application. Accordingly, when you face a situation wherein you may have to violate the H-1B status for whatever reasons, you may be better off working on EAD. Once you violated the H-1B status and LCA conditions and there is a reason for you to believe from the RFE that the USCIS is pusuing such violation, you may have an option of refiling I-485 to take advantage of so-called 245(k) benefit if your violation was less than 180 days. Section 245(k) allows you to file I-485 inasmuch as overstay or unauthorized employment which had been committed "before filing of I-485" was less than 180 days. Under the current USCIS policy, the same violation after filing of I-485 is considered "outside of the parameter" of 245(k) provision. Accordingly, in order to take advantage of 245(k), depending on the urgency, people sometimes refile I-485 application.

I am in a H-1B status and my six-year H-1B limit will reach in June 2006. I filed the PERM application on July 24, 2005. Since the 7th year H-1B extension requires filing of a labor certification 365 days prior to reaching the 6th year limit, I may not be eligible for the 7th year extension based on this provision. What happens if my PERM application and I-140 petition are approved before my 6th year limit is up? Will I still be eligible for H-1B extension beyond the six year limit?

Analysis: It appears that you are not eligible for the 7th year H-1B extension in one-year increment because your labor certification was filed after you reached the 5th year of H-1B. However, the good news is that you appear to meet the three-year increment H-1B extension provision of AC 21 assuming your I-140 is approved before you reach the 6-year limit and because of the visa number retrogression you will not be able to file I-485 application. The H-1B extension in three-year increment does not require that your labor certification was filed at least 365 days before you reach the 6-year limit.

My EB-3 I-485 has been pending for a year and I am stuck with the current visa retrogression. I am an Indian. However, without my knowledge, the company was making a deal with another company and sold us as an asset. My employer is a computer consulting company. For such company, asset means IT employees. The acquiring company acquired only seven out of ten IT engineers from my former employer who filed the labor certification and I-140 petition. I am scared whether my I-485 will be denied because I do not work for the employer who filed the application.

Analysis: The steep visa retrogression will create many people like you in the future because the waiting period will last for years and longer it takes, the chances are that the company will either go through a corporate restructuring or merger or acquisition. Corporate restructuring or merger or acquisition takes many different shapes and forms, and depending on the type of M&A, the new employer may be considered a same company (successor-in-interest to acquired company) or different company, and the alien employees can either be affected or not affected in either nonimmigrant status or in pending permanent resident proceeding. In your case, your new employer is not a successor-in-interest to your former employer and in that regard, it is not considered a same company for the pending green card proceeding. Accordingly, had there not been AC 21 portability law, you would have completely lost the green card opportunity as the new employer is not considered the successor-in-interest to your former employer who filed the application for you. In your case, your I-485 was filed a year ago and you are eligible for AC 21 portability. Therefore, you may not even want to bother to prove whether the two companies are same company. Inasmuch as the current job with the acquiring company is a same or similar occupational classification, you just prove that you were eligible for porting under AC 21 and you ported from your green card sponsor employer to a new employer after 180 days of I-485 filing. One caveat, though. If you worked for the former employer in H-1B status, unless this new company filed a new H-1B petition for you, you should stop working on a H-1B status because your H-1B through the former employer is not valid for employment with the current employer. You should use your EAD. Otherwise, the law will consider that you worked with the current employer without a valid H-1B petition and you engaged in unauthorized employment, which will make you ineligible for I-485 approval.

I am a Software Engineer from India working at the client site of a fortune 500 company at a manager level in L-1B status. Before I came to the U.S., I worked for the Indian company for four years and was in charge of IT department for four months. But when I was transferred to its U.S. subsidiary company in Minneapolis, my job was a Software Engineer. I worked in that status for four years, but promoted to a IT manager position seven months ago. Since L-1B maximum is five years, I am approaching the five-year limit for L-1B in about five months. My employer filed a PERM application which was approved quickly. But it was too late to file the concurrent I-140 and I-485 before October 1, 2005. My question is what will happen if I obtain I-140 approval in the next two months. Will I be able to extend my L-1B visa status in three-year increment beyond the five-year limit pending visa number availability under AC 21? I wish I could change my status to H-1B, but I am unable to do it because the H-1B cap number has been exhausted until September 30, 2006. Please help.

Analysis: AC-21 extension of nonimmigrant status in three-year increment during the period of visa retrogression beyond the per country limit applies to H-1B professionals who obtained I-140 petition approval. However, this provision does not apply to other nonimmigrant classifications. For the purpose of the change or extension of L-visa or H-visa status, these two visa classifications are considered in a same nonimmigrant status in counting the six-year limit to H-1B. As you said, currently a H-1B visa number is not available for you since you did not earn a Master's degree in the U.S. or you had a H-1B visa status one time during the past six years. Once you file and obtain approval of I-140 petition, the USCIS is likely to deny the application for change of status to other nonimmigrant categories because of your immigrant intent unless the new visa classification you seek is either H-1B or L-1 visa status. These two visa categories permit "dual intent" of temporary resident as well as permanent resident intent in the U.S. There is a good news for you, though. When you first came to the U.S., your employer could not file a L-1A visa petition (7-year limit) because you were not qualified at the time as you worked at a manager level in the Indian company for less than one year. That is why your company brought you over here in L-1B status rather than L-1A status. Your current job is a IT manager, but you are still ineligible for the EB-13 immigrant category, multinational corporate manager, which does not require a labor certification. You are ineligible because the law equires that you should have worked at a manager position in the Indian parent company at least for one year. However, you are still eligible for L-1A visa status at this time since you were promoted to a manager position about seven months ago. L-1A can stay in the U.S. maximum upto 7 years. There is a difference in the legal requirements between EB-13 immigrant petition and L-1A nonimmigrant petition even though the name of the position is same, "multinational corporate manager." Inasmuch as you have been promoted and working at a manager leve for six months or longer, you are eligible to apply for change of status from L-1B to L-1A. Since you do not have much time left, you may want to file I-129L petition with the premium processing request. This change of status will give you at least two years and five months more to stay in the U.S. while you wait for the visa number availability.

I am a Chinese, waiting for the EB-3 number becoming available for my priority date of May 12, 2004. My I-140 has already been approved and I-485 is pending before Nebraska Service Center. My Chinese girl friend has just sworn in as a citizen and we are planning to marry soon. We have a child born of this relationship in Iowa City, Iowa. What do we have to do to apply for my green card through the family-based relationship.

Analysis: Your I-485 application is transferrable to the family-based one-step immigration proceeding. The I-485 application can be transferred between the employment-based and the family-based petition. The difference of the transfer between the two different employment-based petitions and the two different petitions of one family-based petition and the other employment-based petition is that when you trasfer between the employment-based transfers, the priority date is also transferred, but when you transfer between the employment-based and family-based petitions, you cannot transfer the priority date. Then why would you bother to transfer between the employment-based petition and the family-based petition, when you can just refile the one-step I-130/I-485 at the local district office? For the two reasons. First money. You do not have to refile the I-485 packet again by filing I-130 Relative Petition with the pending I-485 application receipt notice, asking to transfer your I-485 files to the National Benefits Center. Second, processing time. Since the Nebraska Service Center has already started processing of your I-485 application, including medical, namechecks, fingerprints, etc., the National Benefits Center should not repeat this process. However, you still have the option of refiling everything from the scratch for the family proceeding. This is particularly true if you live in the Dallas district jurisdiction as apparently they still have the 90-day processing Pilot Program. I doubt whether the Pilot Program will allow you to transfer your I-485 file from the Nebraska Service Center to the Dallas District office as it may take time. The transfer option will work well when there is a serious backlog in family-based I-485 proceeding in your local USCIS office.

I am an architect working with an architectural firm that specializes in commercial and residential projects. The firm filed a EB-3 labor certification in November 2003 which was approved later. It was a RIR case. Based on the certified ETA 750, I filed the concurrent I-140/I-485 in March 2004. I-140 has also been approved. I am still working for the employer. The employer is a small architectural firm. Booming real estate market helped the employer to sustain a steady growth. I am a Latino background professional with an achitectural license in Mexico. The exploding Hispanic population started demanding Latino design. There is an investor who is willing to start a business of engineering, construction, and architecture specializing in the Latino design market and asked me to join him as a co-owner. We see a huge market and business opportunity ahead and we formed a corporation with each of us owning 50-50 shares. The employment contract with the present employer did not include non-compete clause for this type of business. Besides, the employer was in the process of phasing out of the business because they had lost major clients. They agreed in writing to allow me to go into my own business. Using the EAD, I started working as an architect for our business in August 2005. Our business is growing and we have started hiring interior designers, landscape architects, civil engineers. Now, I start wondering how these events would affect my pending I-485 application. Since it is a self-employment in the sense that I own 50% and have controlling power in the shareholders' agreement. Probably I should have consulted an immigration lawyer before I jumped into the business. Sir, what do you think? Am I going to be in trouble down the road?

Analysis: You should look at your situation in two angles: One is its impact on your maintaining and not violating nonimmigrant status since you worked with the green card sponsor as a H-1B employee. The second issue is whether your self-employment will affect your I-485. As for the first issue, since you started using EAD, you were allowed to go into the open market for second or third employment inasmuch as you and your green card sponsor did not abandon the green card sponsorship and intent. You are currently no longer a H-1B nonimmigrant, but you are authorized to stay and work in the U.S. using EAD and pending I-485 application. For the second issue, it sounds that since you have a controlling power, it is basically your own business and as you properly defined, a self-employment. This kicks in the issue of AC 21 portability after 180 days of I-485 filing. AC 21 statute itself does not clearly provide whether the "new employement" for porting includes the self-employment. However, the recent AC 21 memorandum, nick name of Yates' Memorandum, cleared the water by stating that porting includes self-employment inasmuch as all other conditions for porting under AC21 are satisfied. The conditions for the porting include "same or similar occupational classification" and both you and your green card sponsor employer "in good faith" intended to employ you for a duration of indefinite period at the time I-140 and I-485 were filed. It appears that your situation squaredly fit into these legal standards. You may however pay attention to one additional point. Since it still has to be an "employment," simply remaining a shareholder without working as an architect should not come within the parameter of Mr. Yates' definition. Remember that 1099 will be no good and executive or managerial function may not be sufficient. You should work as an employee of your firm, meaning that the firm should issue W-2 to you and you should perform the architectural duties which the original labor certification specified. Remember also that the USCIS will determine "same or similar" by OES/SOC code or DOT code (001). If you just wear a three-piece suit running around as a rain-maker for the business and go out in the golf courses playing golf most of your time, you should know that you are not an architect. You may want to make it sure that your company keeps a good record of payroll and your work records. It appears that your firm is going in the right track. Congratulations for your success!

I filed so-called 245(i) regular labor certification application on April 30, 2001 in California because I ran out of status and was subject to 10-year bar from returning to the U.S. once I leave the country. 245(i) relief will be a savior for me and my wife and four children. It is still pending at the Backlog Processing Center. Since it will have to go through the recruitment process under the supervision of the Backlog Center, I still have a long long way to go for two reasons: (1) Processing Delays at the Backlog Center and (2) Visa Number Retrogression. Until that time, we need to survive. In order to work and get a driver license, I purchased Social Security Card and EAD card from an immigration broker. I started my own business of landscaping for high income homes. My wife has also been working as a bueautician. We are so-called "white" and look like typical mainstream Americans unlike Indians and Chinese. This helped us to get jobs and business to survive without raising suspicision of our illegal status. I really hope that the Dallas Backlog Processing Center certifies my labor certification in the near future so that I can file concurrent I-140/I-485 application, EAD application, and Advance Parole for travelling. I came from a country in the Eastern Europe. I have not seen my ailing mother for many many years and my heart has been torn. I would like to collect and prepare for the immigration filing assuming that my labor will come through soon. What do I have to keep in mind?

Analysis: When an alien has a history of long journey before or after filing of the I-485 applications, the USCIS tends to look at the financial records of the alien very closely to see whether there was any unauthorized employment. People often misunderstand that a self-employment is not an employment for the purpose of immigration proceeding and cross the boundary of authorized employment by doing some types of certain sales buisness at home or even baby sitting. These are all considered "unauthorized employment." In the I-485 adjudication, the USCIS is likely to require applicants to submit the detailed financial records including 1040 tax returns, W-2, etc. One primary purpose of demanding such record is to detect unauthorized employment. As the adjudication of I-485 will be delayed for a long time, by the time they are ready to adjudicate I-485 applications, the USCIS may serve RFE asking to update the financial evidence like tax returns. Such financial records should not show any unauthorized employment. In your case, though, so far your unauthorized employment, including your wife and children, will be forgiven when you file I-140/I-485 because of the 245(i) relief protection. (Caveat: Until you file I-485, you and your family members can be arrested and deported. However, from the time a legitimate I-485 is filed, your stay in the U.S. will turn into an authorized stay. Accordingly until you reach a point of time when you are allowed to file I-485, you should remain underground.) However, once the 485 application is in, you will no longer be permitted to work without employment authorization and post-filing violations will make your application ineligible for I-485 applications. People often misunderstand that 245(i) will save you from any immigration violations in the past. That is absolutely not true. It only forgives unauthorized stay and status (overstay or entry without inspection) and unauthorized employment before filing. If you have any other violations, you are still ineligible for I-485 application. In your case, you purchased a fake Social Security Card and a fake EAD card. This in itself may make you ineligible for I-485 even if you pay $1000 using 245(i) unless you can get a waiver. You should seek legal counsel as soon as possible. It is true that because of the visa retrogression, I-485 applicants may neglect to pay attention to the issues of post filing violations, particularly unauthorized employment, from misunderstanding of the laws. Such violations can haunt the people after so many years of agonizing battle. If they did not violate the immigrantion laws, they should still not neglect to preserve all the evidence of maintaining legal status during the long period of wait for visa numbers and I-485 adjudication. Cases are often transferred to the District Offices when the visa number becomes available because of any criminal record popping up in the namecheck process (FBI record printouts), no matter whether it was a minor offense and not becoming a source of ineligibility for I-485 applications. Since people do not have to be convicted to appear in the FBI database, people often neglect such minor violations like unconvicted shortlifting arrests, unconvicted arrests for solicing a sex for money at a bar to a woman or man or unconvicted arrest for brawl or loud noice in the neigborhood. Once one is taken to a police station and fingerprinted, it remains in the FBI database, no matter whether one is convicted or not. Those cases are almost 100% transferred to the disrict offices for interviews and collection of the police or court records. We sometimes face a situation that a person has committed multiple shortlifting arrests to stealing $30 or $50 value merchandise and fingerprinted but released without any charges. Drunken driving? You guessed it. The management of a good behavior and collection and preservation of record and evidence post-filing remain very important as people will have to go through a long journey. In your case, you may make another critical mistake by leaving the country with Advance Parole. Advance Parole does not allow you to return to the U.S. when you are subject to the 10-year bar. You should not even think about applying for the Advance Parole. This reporter also has grown up children and knows the terrible pains you will have to experience from the forced separation between you, your family, and your ailing mother for the long time to come. I hope all of you well.

I am an Indian born in Delhi and my EB-2 I-140 (self-petition) has been approved. However, I could not file the I-485 because I am currently in J-1 exchange visitor status and subject to the two-year foreign residency requirement. I applied for waiver of the two-year foreign residency requirement but it is not expected to be approved until August 2006. Since the EB2 category has retrogressed now and it is doubtful if it would be current by August 2006. My wife was born in Berlin, Germany. Can I use the alternative chargeability rule and file I-485 when the waiver comes through in August 2006? I understand that it may be easy to use that provision when I do the consular processing, but how is it done when I apply for I-485 with the USCIS?

Analysis: J-1 alien who is subject to two year foreign residency requirement cannot file I-485 until you receive the recommendation letter from the U.S. Department of State and the I-601 waiver approval by the USCIS. When there was no visa number retrogression, the USCIS sometimes accepting I-485 application together with I-601 application at their discretion, but when there is a visa retrogression, such discretion may not available. Once you obtain the USCIS waiver approval, there is no big difference in processing either immigrant visa through the consular processing or I-485 adjudstment proceeding. This is one of the issues which Yates' memo clarified not too long ago. The Memo ask that when you file the I-485 applification, you note in bold magic marker everywhere, including envelope, cover letter, your attorney's G-28, I-485 form itself note "Alternative Charge to Germany." If you do not do it, there is a good chance that your application filing may be thrown out and rejected by the contractors who handle the filings in the mailroom or data entry. You should not have any problem in coming August 2006 when you submit the I-485 application together with your wife's I-485 application, unless the worldwide EB-2 also would have moved backward at the time.

I am a Chirpractor who obtained EB-3 labor certification approval. I am an Indian native. I filed concurrent I-140/I-485 eight months ago. My I-140 has been approved, but I am stuck with the visa retrogression. The clinic is located in Savannah, Georgia, but planned to shut down at the end of October 2005 and merge to its another clinic in Atlanta, Georgia. I and my family are in total confusion and panic state. Will my I-485 be denied because there is no job at the original place of intended employment, Savannah, Georgia?

Analysis: When the labor certification application job disappears because of either termination or close-out, the law was that your I-140 and I-485 will also be gone. AC 21 portability can however be used in your situation. The AC 21 does not specifically state that the new employment includes the change of job sites to another state with the same employer. However, it is obvious that your new job site in Atlanta should also be considered a new employment doing a same or similar occupational classification, the magic word. AC 21 portability provision opens new employment anywhere in the United States. There is no physical location boundaries. In your case, as far as the jurisdiction of the Service Center is concerned, it will remain same, Texas Service Center. However, even if you are relocating to another state of California Service Center, you case will remain with Texas Service Center. They will however schedule the ancillary proceedings such as fingerprinting and interviews if transferred at your place of residence. When there is a visa number retrogression, AC 21 Act indeed works magic and angel to hundreds or probably millions of people. Additionally, recent USCIS leadership team of Yates-Divine and their liberal interpretation of each and every provision of this legislation has brought about a literal miracle. We hope this will not change.

I am a medical scientist from Ukraine doing stem cell research. I am not eligible for National Interest Waiver or Outstanding Researcher. I read on the visa prediction for the next year which apparently indicates that EB-3 for worldwide may continue to experience a substantial retrogression. It sounds that EB-2 may have a bright future unless I were a Chinese or an Indian. My employer, a university in the East Coast, is about to file a PERM application for EB-2. I have a Ph.D. degree in Biology and also worked as a medical researcher in Ukraine for almost seven years. I want to know how my case will get the benefits of both EB-2 and EB-3.

Analysis: The immigrant regulation makes two groups of people qualified for EB-2. One is those who hold a master or high degree. The second group is those who hold a bachelor's degree plus five years of progressive experience. One time it was not clear whether the labor certification should require "a master's degree or bachelor's degree and 5 years of progressive experience" to obtain EB-2 I-140 petition approval. Indeed, there were some incidents that the Service Centers had denied EB-140 petitions because the underlying labor certification had required only a bachelor's degree and five years of progressive experiesnce without opening the job opportunity to the master's degree holders. Later, William Yates, Associate Director of Operations, changed all these, in a memorandum clearly giving a guidance to the Service Centers that the requirement of bachelor's degree plus five years of progressive experience "standing alone" should make it a EB-2 petition. This policy has opened a new horizon to the EB-2 seekers with years of experience with or without a master or higher degree to crack the thick wall of EB-2 route. First, in the recruitment stage, it could reject all those master's and Ph.D. degree holders unless they possessed more than five years of work experience. That has substantially narrowed down qualified U.S. worker competitors' challenge. For EB-2, the employer currently has three options in the labor certification application: Require either (1) master's degree only or (2) bachelor's degree plus 5 years of progressive experience, or (3) master's degree or alternatively bachelor's degree plus 5 years of progressive experience. From the perspectives of the labor certification recruitment, options (1) and (2) substantially narrow the qualified U.S. workers, while option (3) opens a wide horizon of job opportunity to a large of number of the U.S. workers. Accordingly, the lawyers have taken advantage of the current liberal policy for EB-2 and filed either option (1) or option(2) labor certification application to pass the labor market test of recruitment before filing. However, there is some indication that a conservative school of officials within the USCIS may want to change the current Yates' interpretation of the law and return to the old narrow interpretation. Just like anywhere else, there are always three different groups of officials within the USCIS: Liberal, conservative, or middle-of-the -road. Currently we are living with the liberal group of the leaders. However, the wind may likely blow to a different direction in the future because of the ongoing shifts in the USCIS leadership. Accordingly, some lawyers at one corner of the lawyer's community start talking about the strategy of filing the option(3) type of requirement for the EB-2 labor certification application just for safe-side for the future. One should know, however, that the option (3) has its own drawbacks. First, the employer will have to deal with a pool of much larger number of potentially qualified U.S. workers and may fail in the labor market test. Secondly, the Decision Matrix of the PERM online system one time denied most of the application when the alien was qualified through the alternative qualification option even before reaching human hands. Lately, this part of the online filing system apears to be slowly improving, but lawyers still have a fear of making their clients qualified through the alternative requirement. Well, in real life, there is no easy way out in most of the circumstances. In the employment-based immigration, this is it! The potential shift of the direction of the wind may not come in the near future and people may not have to worry about too much at this time. This is particularly true since, regardlesss of the visa retrogression, the PERM application can take such a short time and the I-140 petition can also take such a short time now and in the foreseeable future. Once I-140 petition is approved, you are done with this type of issues. Accordingly, I suppose you may want to discuss with your legal counsel about the desirability of going for option (1) or (2) in your case rather than option (3) at least for now.

I filed a regular labor certification application on April 30, 2000 in Texas to take advantage of the 245(i) benefits. My priority date is April 30, 2000. After a tremendous delay, my employer completed the supervised recruitment process and filed recruitment result report establishing that there was no qualified U.S. worker available for the job in the area. Then you know the rest of the story. The case ended up in Dallas Backlog Processing Center and I have been waiting and waiting. As time passed, I purchased a house and moved to other side of the town, Austin. My employer also moved to another building in the same city, Austin, Texas. My employer was supposed to receive a so-called 45-day letter, which did not happen. For the purpose of the 7th-year H-1B extension, I sent an e-mail to the Dallas Processing Center and have received the screen-shot status sheet. Through this, I was able to learn, for the first time, at least the case number and that the case was not lost or misplaced. I then sent an e-mail again reporting the new address for the employer and myself and inquired of the status of my case and asked why my case was not processed with the 45-day letter. Later I received a letter from the Backlog Center in the mail. Just looking at the envelope was a relief and a thriller. When I opened it, I almost collapsed because it said my case had been closed because the 45-day letter had returned "undeliverable, address unknown." I can certainly try one more time through the PERM but my priority date is going to be gone in this state of steep visa retrogression! Please help.

Analysis: There are a number of issues and lessons to learn from your case for all of your colleagues. First, assuming that your priority date is lost, your 245(i) benefit will remain intact. That should be a relief for you. Second, even though it was belated, you are lucky that you at least learned what was going on with your file in the Labor Department. Because of the transition in the labor certification systems and processing systems, at this time, the Backlog Centers in most cases understand that this could happen and they would be willing to reinstate your case if you write and explain the circumstances. You should take care of this as soon as possible. What you and people should learn from your traumatic experience? First, when you have to deal with a legal process that can drag for years for various reasons including the steep visa number retrogression, keeping the agencies informed of the address change will be critically important. "Undeliverable" can be considered "abandoned" resulting in denial of the application or petition. When it comes to the USCIS proceedings, you probably reported AR-11 address change to the DHS. However, the AR-11 report serves a completely different purpose and that report does not go into your files in the processing agencies. Accordingly, unless you file a separate report to the Service Center of your jurisdiction, their RFE or other communications will be returned to the agency "undeliverable." Once it happens and the deadline for response to such RFE or any other communication passes, your case will be denied. The Service Center mails are served with "red color stamp" on the envelope "Return Requested," meaning that the postal service is not authorized to forward the mail even if you filed the "forward request." Thus, it is incumbent upon you to update the agencies your address literally "religiously" not to face a crisis. Besides, using a regular mail will not preserve the evidence that your address change report was properly filed. Using 800 number will also not leave any material evidence that you have reported. You should always leave an evidence, including a photo copy of your report and either "registered" or "certified mail" or overnight delivery receipts to deal with the situation later, should your case be denied because of the "undeliverable" agency mails. In your case, unlike the USCIS proceedings, the Dallas Backlog Center will be lenient and may likely accomodate your situation and reinstate your application. Second, you should keep a copy of all the documents that may be necessary to prove something in the future. Years later, you may learn that you have failed to preserve evidence and fail to prove something which the agency will request. Along the way, the agencies are likely to write you either to submit certain evidence or proof before they finally adjudicate your case. Keeping record and copies will be critically important for the next several years. A number of you may change employment or experience certain situation which can involve very complex and delicate legal issues. Again, the preservation of evidence is a key to winning the case. Close communication with your legal counsel is another thing which you should not neglect. Remember "things change along the passage of time!" So does your memory!

I filed a RIR application of 245(i) benefits. The labor certification and I-140 were approved later. However, I was terminated by the employer in March 2005. Before the termination, I was able to port my H-1B with the current employer. The new employer filed and obtained the PERM application (EB-3) for me. I have learned that the old employer used the approved RIR labor certification and substituted the beneficiary who filed I-485 application. In order to substitute the beneficiary, the old employer withdrew and revoked the approved I-140 petition for me. Because of my past violation of nonimmigrant status, unless I use the 245(i) benefit, I will not be able to file and obtain I-485 application when the visa number becomes available. Can I transfer my RIR priority date to the PERM application or the RIR priority and 245(i) benefit are no good any more since the old employer revoked the petition?

Analysis: For some reasons, people keep bringing up similar questions over and over again. It appears that you are terribly confused about the question of retention of priority date and the grandfathering of 245(i) benefit. Please allow me to straighten this out once and for all. (1) The 245(i) benefit is attached at the time a labor certification was "properly" filed and the labor certification was "approvable" at the time of filing. Consequently, unless the application was frivolous, meritless, or fraudulent, the subsequent event that evolves would not take away that provilege. For instance, denial or revocation including employer's withdrawal or going-out-of-business will not affect the 245(i) benefit. The attached 245(i) benefit is carried with you "for good" wherever you to, including change of employment. The attached 245(i) benefit is also not affected by loss of the priority date. For instance, let's assume that you filed two labor certification applications either by the same employer or by the different employers, one RIR and one PERM. Let's also assume that the DOL announces in the future that they will deny pending RIR application when they approve the PERM application. There is a serious issue of legality of such policy. But for the purpose of the discussion, that will be the rule. Then you would lose your RIR priority date. But your 245(i) benefit will not be affected by such DOL's action of taking away of your RIR priority date. So, as far as your 245(i) benefit is concerned, you should not worry about it. Your former employer does not have any authority or power or means to take away your 245(i) benefits once the benefits are attached. Now, let's get to the second question: Retention of priority date. Under the current USCIS policy, the priority date of a certified labor certification application is retained by the substituting alien beneficiary for the purpose of the immigrant petition and 7th year H-1B extension. Since the new beneficiary filed I-485 application using your RIR priority date which is likely to be approved ahead of you, you will not be able to use the RIR priority date even if you had obtained the I-140 petition as the petition has since been revoked. Besides, in your case, we hypothesized that the DOL would deny the RIR application at the time of PERM approval. Once the labor certification application is denied, the beneficiary is not eligible for the 7th year extension of H-1B status. If I may sum up, loss of priority date will take away your chances for transfer of the priority date to other petitions and the 7th-year H-1B extension. However, loss of priority date alone would not take away your 245(i) benefits. You should learn to separate the question of priority date from the 245(i) benefit question. These two are two separate things. Please allow me to add one more important point for the H-1B 7th-year extension eligibility. Once you accumulate 365 days of labor certification filing, unless one of two things takes place, you backpack this privilege with you and will be able to obtain the 7th-year extension either through the labor certification sponsoring employer or another employer. The two things that take away your eligibility for 7th-year H-1B extension are: (1) Denial or withdrawal or revocation of the pending or approved labor certification application. (2) Substitution of the beneficiary for the certified labor certification application. This also includes the amendment of the pending labor certification application replacing the alien beneficiary before the labor certification is decided.

I am an internationally renown medical research scientist. I have published 57 articles in international journals, one international award, membership with the national endowment, five U.S. patents. My lawyer filed four I-140 petitions for me: EB-11(Extraordinary Worker), EB-13(Outstanding Researcher), EB-2 (NIW), and EB-2 (Labor-certification based) to assure me of 100% approval of my green card. I have received the first I-140 approval, EB-2 (Labor-certifcation based). My I-485 was concurrently filed with this petition. What would happen with the other pending I-140 petitions? Will they deny them since they approved one I-140 petition? Am I required to withdraw other petitions?

Analysis: Absolutely and positively not. Your lawyer filed the four I-140 petitions for a number of reasons. Among others, the first reason was to free you from any employment contract with any employer. EB-11 and EB-2 (NIW) can be self-petitions. Once your lawyer filed the self-petitions for EB-11 and EB-2, you will not be affected by any changes with your current employment. The second reason was to allow you to pick and choose the most favorable priority date as these petitions range from EB-1 through EB-2 and EB-3. You are not required to withdraw, nor the agency will deny, other petitions simply because one petition has been approved. You should keep all of these petitions intact until you are granted adjustment of status (I-485) or immigrant visa. Approved I-140 petition cannot be transferred to other alien beneficiaries and by the time your green card is approved, these petitions will turn out to be a waste. But such will harm no one since it is the I-485 approval that takes out one immigrant visa number form the immigrant quota and not I-140 petition. Probably the multiple I-140 petitions for a single person might have added some additional I-140 workloads to the agencies, but you paid for the cost. Since you never know what will happen with your employment and what will happen with the visa cut-off dates for EB-1, EB-2, and EB-3, you are going to make a big mistake if you withdraw any of these petitions. I salute to you for your remarkable achievement in your field of science!

I am a Civil Engineer involved in a highly sensitive railroad and subway safety program. I am currently working in a H-1B status. My invention will enhance and improve the security of passengers. I would like to know if my services would be qualified to apply for the NIW. I have filed for the EB-2 labor certification through RIR, but due to the backlog in the labor certification process and visa retrogression, I am thinking about filing a NIW petitions as the visa waiting time for NIW EB-2 may be much shorter. What are the chances?

Analysis: The NIW must pass the three-prong test of national scope, inherent merits and significant benefits to one of the areas of national interest to the U.S., and significant achievement in the field that makes a labor certification requirement fruitless. It appears that your invention may be significant benefit enough to establish the Prong I and Prong II. But under the current standards, it is not enough. Most of the NIW petitions are nowadays denied on the Prong III. Accordingly, unlike the situation before 1998, you will have to come up with the evidence establishing both the likely "future" promise of your talent to one of the areas of national interest in this country and the significant "past" achievement that put you above your colleagues in your field. For these reasons, once the legal counsel is convinced that you can establish the threshold for NIW, the counsel considers filing EB-1 and EB-2 (NIW) simultaneously. EB-1 focuses on the "past" achievement rather than future promise or contribution. Once you won a Nobel Prize, you do no have to prove that your presence in this country will significantly contribute to one of the key areas of national interest to this country. Without knowing your background, it is difficult to tell you whether you will have a chance or not. The second question you presented has a flaw. The RIR application which has been pending is in the category of EB-2 requiring a master of science degree in civil engineering. When it comes to NIW-EB2 and non-NIW-EB2, there is no difference in visa number availability. Both of them are subject to the same EB-2 preference category. The only difference is the processing times. Obviously, since NIW is a labor certification waiver petition process, you do not have to deal with the long wait in the labor certification process. However, once the NIW is filed with the Service Center, some of these Service Centers reveal a significant gap in processing times between the NIW EB-2 petition and the non-NIW EB-2. It appears that the delay of NIW case processing stems from the number of "meritless" petitions the Service Centers have been receiving from the borderline quality aliens. Besides, the review of NIW cases requires a very high level of expertise and experience for the adjudicators and only a few officers in each Service Center can handle these cases unlike the fairly straightforward labor certification based immigrant petitions. Accordingly, it is extremely imprudent to rely solely on NIW case for the green card track. NIW should be tried as just one of the multiple tracks of immigration processes, including the labor cerification application. Going back to your question, it sounds you are going right away inasmuch as you prove the past achievements. Good luck.

I am a nuclear research engineer. My employer filed an EB-2 RIR application in November 26, 2002. I understand that the PERM system is working better now and the rate of approval has been substantially improved. Meanwhile, the backlog cases are still crawling in smail pace. I am thinking about refiling a labor certification under the PERM requesting the DOL to retain the pending RIR priority date of November 26, 2002. What are the risks?

A: It is true that the PERM processing system has been substantially improved after removing decision matrix denials. As of now, a PERM application cannot be denied by the decision matrix alone. These cases must be reviewed by the analysts and certifying officers before a decision is made to deny any applications. It appears that this change has resulted in substantial reduction in denials. However, refiling with the request to retain the backlog case priority date still has an inherent risk. The first risk is the denial of the PERM application. Once the PERM is denied, the backlog case is considered "withdrawn" and you get double whacks: Denial of PERM and loss of RIR application and priority date. The other risk involves the approval of the PERM but the labor department tells you that the PERM application was "not identical" with the RIR case. In this case, you will obtain the PERM application without retaining earlier priority date. Additionally, since the RIR case is considered "withdrawn," your RIR application and its priority date are destroyed! For refiling to be successful, you need two assurances: (1) approval of the PERM, and (2) acceptance as "identical" case. If you fail either of these two, your priority date will be completely lost. Considering the fact that the rate of PERM application denials appears to be substantially higher than the old labor certification system (approval rate was about 80% before the PERM), the risk under the foregoing factor (1) is still very high. For the foregoing factor (2), the DOL policy is still not crystal clear when it comes to a situation where there is a slight variance in a number of variables that affect the definition of "identical." The problem is that such variance is sometimes inevitable because of either changes in the company or two different rules and laws allowing different requirements between the old labor certification rule including the RIR and the current PERM rule. Both of these factors will take time to settle in and in my opinion, it may be premature to refile under the PERM system requesting in the form retention of backlog case priority date. There may be some legal counsels who may disagree with me. You should seek legal counsel of your own. There are a plenty of attorneys who take a very liberal approach and are willing to take a risk like a gambler. I am a chicken and a conservative duck when it comes to risk taking.

I and my wife are Italians in H-1B statuses. My wife is an Accountant and filed a EB-3 labor certification in New York in November 2003. Since then, we have not heard anything from the DOL. Her lawyer sent an e-mail recently to the DOL to learn about the status of her case with no avail. I am a senior technician in cell biology and cardiology with a master degree and 7 year exprerience. I am thinking about filing my own PERM application through my employer. My employer is a Univesity. Should I do that?

A: When you are in a severe retrogression of EB visa numbers and both of you are in professional occupations, each of you should seek the immigration track separately and independently. Such strategy will assure you of the green card for your family and help you to survive in the long journey. Under the immigration process, the labor certification or I-140 immigrant petition which has been filed and approved will have no affect on other spouse's independent labor certification application or I-140 petition. Such applications or petitions rather allow you to maneuver in dealing with the 7th H-1B extension, maintaining nonimmigrant statuses, taking advantage of earlier priority date between two of you, and most importantly, when visa cut-off date moves, will allow you to switch around the underlying I-140 petitions between two of you while keeping the I-485 alive, plus AC-21 180 day rule of change of employer which will allow both of you to go into the "open market" without losing the green card process. It appears that your wife's case might have either been trapped in Philadelphia Backlog Center or in New York Region Satelite Office. The Satellite Centers in New York, Boston, San Francisco have been very inactive pending the DOL's development of national database hooking up the various Processing Centers into a single national database network. This included the PERM National Processing Centers in Atlanta and Chicago, the Backlog Centers in Philadelphia and Dallas, and the Satellite Centers in New York, Boston, and San Francisco. The Satellite Centers had not been hooked up to the national database for quite a while according to the DOL report, especially when the national database of the two principal Backlog Centers themselves had yet to be completed because of the delays in opening boxes, data entries, etc. The Satellite Centers in San Francisco and New York/Boston are currently scheduled to shut down late January 2006. Only God knows what will happen with the pending cases in these Satellite Centers. To answer your question, you should proceed with your own labor certification track immediately without relying on your wife's labor certification track. It appears that your H-1B 5th year may reach soon and you also need the 7th extension relief by filing your own labor certification application before you reach your H-1B 5th year. You can tack on your wife's H-1B 7th-year extension but it will not be H-1B but H-4 and you will not have your own basis of employment authorization. Since you are an employee of a higher learning institution, you do not have to worry about the ongoing H-1B cap. You are not subject to H-1B annual cap on three different grounds: (1) Employee of a university; (2) You are already in H-1B status; and (3) You hold a U.S. Master's degree. Each of these three grounds take you out of the H-1B annual cap. You used the term of "technician." Usually a technician is considered a nonprofessional occupation not even necessarily requiring a Bachelor's degree unlike technologists, but the fact that you have already attained the H-1B status indicates that the term you used is a misnomer or you are in certain high level medical science technical field. Whether or not your employer can file EB-2 requires two thresholds: (1) The occupation itself must be a professional occupation that requires a master's degree or bachelor degree plus 5 years of progressive experience "to enter the occupation at the entry level." (2) You yourself must possess a master's degree in the filed or bachelor's degree in the field plus five years of progressive experience. Unless the conditions for both (1) and (2) are met, your employer will not be able to file EB-2 labor certification for you. Please seek legal counsel. The sooner you start, the better. You are in the best season to start the recruitment process in that you are approaching the nation's biggest holidays and you are far from the graduation season. Please go for it!

I have been working in H-1B status for different employers for over five years and tried labor certification applications two times. Now the current employer is willing to start PERM application for me. The problem is that I have already passed five years in H-1B status and will not be eligible for the 7th-year H-1B extension. Since there is a steep visa retrogression and I will have to maintain a nonimmigrant status for many years to come, I really have a problem. Is there any way to get around?

Analysis: Today, on October 27, 2005, the USCIS released a very good news for the people like you. It involves recapture of time outside of the U.S. in calculating six-year limit of H-1B status. The recapture has been available for a long time, but the USCIS field offices have been following an old policy that unless the overseas trip breaks H-1B employment by a "meaningful interruption," they said that such time spent outside of the U.S. for paid vacation or business did not break the H-1B time and cannot be recaptured. Since most of the H-1B people are travelling abroad to visit family members or for pleasure using the paid vacation time, it was very difficult to recapture time for the trip outside of the U.S. to stretch out the H-1B six-year limit. In fact, the AAO ruled more than two times that once the H-1B person left the territory of the U.S. and was readmitted to the U.S. , regardless of the purpose of the trip and length of the trip, such time should have not been counted as part of the H-1B time. Unfortunately, these decisions have remained "unprecedent" and "not binding" and the Service Centers have refused to follow these decisions. However, today's USCIS Acting Director's decision to make such decisions precedent and binding decisions will allow people like you to use international trips to extend the reach of H-1B 6-year limit. For instance, if you have spent one or two months during the past five years of your stay in the U.S. in H-1B and spend one or two months more in the future outside of the U.S. for vacation, you will be able to reach 365 days after filing of the PERM application and can apply for the 7th-year extension or three-year increment extension depending on what nationality you are and what stage of immigration proceedings you are in. Accordingly, this liberalized rule of recapture of H-1B time for the overseas trips will be able to serve as an important tool for those H-1B professionals who start the labor certification process at the late stage of their H-1B career in the U.S.

I filed concurrent I-140/I-485 and changed employment after 180 days. However, I made a mistake not timely renewing EAD and it turned out that I had engaged in unauthorized employment. The Bureau of Immigration and Customs Enforcement detected such violations and started a removal (deportation) proceeding before the Immigration Court. My lawyer admitted that I was deportable because of the unauthorized employment and then sought a relief of I-485 application before the Immigration Judge. The final hearing is yet to be scheduled and I am in a nervous break. Please help.

Analysis: It appears that since you violated immigration law by engaging in unauthorized employment pending I-485 application, you may not be eligible for I-485 and the USCIS could have denied your I-485 application. However, denial of I-485 does not completely shut off your another opportunity to seek the same I-485 relief before the immigration judge inasmuch as the Immigration Judge exercises discretion. The problem is whether the Immigration Judge can save and approve the I-485 relief when you have already changed employment under AC 21 and you are no longer employed by the I-140 petitioning employer. Unfortunately, your I-485 application is still pending before the Immigration Judge and because of the new decision handed down by the Board of Immigration Appeals under the U.S. Department of Justice on October 28, 2005, the Immigration Judge will not be able to grant you I-485 relief. I reported this decision in Breaking News on October 28, 2005. The name of the case is In re Perez Vargas. The Board decided on that day that Immigration Judge would have no jurisdiction to apply AC 21 I-140 portability law in immigration court proceedings and consequently the Immigration Court would not be able to rule that your I-485 application would remain unaffected by the change of employment under the AC 21. The Board decided that the Immigration Judge would not be able to recognize and apply I-140 portability because the statute granted sole authority and jurisdication of AC 21 over to the DHS. In your case, since you have ported, the Immigration Judge is likely to rule that you will no longer be eligible for I-485 relief because the approved I-140 petition cannot support your pending I-485 application as the I-140 porting cannot be recognized by the Court. Consequently, since you are not eligible for the discretionary relief of I-485 adjustment of status to a lawful permanent resident, the Immigration Judge will have to order that you be deported unless there are some other discretionary relief available before the Immigration Court. The Perez Vargas decision is very troublesome for those who ports after 180 days and runs into a minor violation of the immigration law. In your case, had you not ported, the Immigration Judge would likely grant you I-485 adjustment of status assuming that you would continuously be employed by the I-140 petitioning employer as the underlying I-140 would remain valid from the perspectives of the Immigration Judge. Because of the Perez Vargas decision, there will be a huge difference between the two groups of I-485 waiters when they are brought to the Immigration Court proceeding for the minor violation of the immigration law. Group I is those who ported and Group II is those did not port. The Group I will not be eligible for I-485 relief through the Immigration Judge and the Immigration Court, while the Group II will be able to adjust status to a lawful permanent resident status despite of minor deportable violation if the Immigration Judge exercises discretion and grants the I-485 relief. Since this is a precedent decision and remain a law until it is overturned by the Attorney General or the federal judicial court, those who have a potential issue of the immigration law violation may not want to change employment as it will block out their opportunity to seek I-485 relief before the Immigration Court. Ouch!!

It is October 30, 2005 today. My H-1B status will reach the 5th anniversary on December 31, 2005. My current H-1B is valid until July 2006. My employer is about to start the PERM process, but the visa number retrogression is likely last at least a few years, and I will need the H-1B extension indefinitely under AC 21. I am afraid it may be too late since my employer has not started any process. What do I have to do?

Analysis: In order to apply for the 7th-year H-1B extension after December 31, 2006, your PERM application must be filed before December 31, 2005. As for the timeframe for PERM filing process, it needs minimum of 60 days or more from the time the Job Order is placed with the state labor department before the employer can submit a PERM application. It thus appears that it may be too late unless you and your employer take a strategic action. One action could be that you take an overseas trip immediately or as soon as possible for a vacation or some business trip for two months or so in order to stretch out your 5th-year anniversary to March 2, 2006 as you can recapture the overseas time. Your employer will then immediately initiate the recruitment process and place the Job Order with the state labor department at least within next one week or so. Thay way your employer will be able to file PERM application before March 1, 2006 and you will be able to apply for extension of the 7th-year H-1B sometime in October 2006. Luckily, the USCIS has just adopted the AAO decision that ruled that any time spent outside of the U.S. will not be counted in calculating your H-1B six-year limit.

I am a Chinese and filed 140 petition based on the approved labor certification which was filed before April 30, 2001. The petition was approved and I filed I-485 application. The I-485 has just been denied because of the untimely response to the Request for Evidence. Ever since April 30, 2001, I have never travelled outside of the U.S., and I have been working on EAD. At the time of denial of I-485, the USCIS revoked my EAD but I continued to work for the past four months. What do I have to do?

Analysis: I am sorry that you did not respond to the RFE timely. The denial of I-485 is not appealable. However, luckily your approved labor certification and I-140 remain valid and you may be able to resubmit I-485 application very quickly based on either 245(i) or 245(k). The Section 245(i) provision allows you to file I-485 application even if you have overstayed or engaged in unauthorized employment "prior to" submission of I-485 application, no matter how long, provided that your priority date is earlier than May 1, 2001 and you were physically present in the U.S. on December 21, 2000. If you use 245(i) relief, you will have to file a special form I-485A and pay extra $1000. There has been an opinion by the USCIS that denial of one I-485 application will not bar you from filing another I-485 application based on the grandfathered 245(i) benefit. Section 245(k) provision will also allow you to refile I-485 application without filing I-485A and $1000 penalty since your I-485 was denied less than 6 months and you also worked without employment authorization for less than 6 months. The unathorized stay and unauthorized employment must have lasted "less than 6 month since 'last' admission to the U.S. " to be qualified for 245(k) relief. This 245(k) relief is available for those whose EB-1, EB-2, EB-3 I-140 petitions have been approved or those whose I-360 "Religious Worker" petition has been approved. Accordingly, if one's overstay or unauthorized employment since the last admission to the U.S. has lasted more than 6 months in a situation similar to yours, he/she should file I-485A and $1000 penalty when he/she refiles I-485 application. However, when either the unauthorized stay or unauthorized employment has been lasted less than 6 months before you refile the application, you do not have to file I-485A nor pay $1000 penalty. You have been staying and working in the U.S. without any nonimmigrant status pending I-485 application, but the law tolls running of unlawful stay or presence from the time I-485 is filed until I-485 is decided. In your case, you can also apply for an immigrant visa through the consular processing by leaving the U.S. before you accumulated 6 months before your departure frm the U.S. However, those who will have to use 245(i) benefit because of their unlawful presence for over 6 months should not seek the consular immigrant proceeding as they are subject to the 3-year or 10-year bar from returning to the U.S. and the consular officer will not be able to issue an immigrant visa to them. 245(i) relief is not applicable to the consular immigrant proceeding. In your case, you may want to refle "very quickly" I-485 for the two reasons: First, you should notallow yourself to pass 6 months from the date of denial of I-485 application to take advantage of 245(k). Second, the USCIS has been considering for several years to enact a regulation to restrict 245(k) benefits narrowly and one never knows when this will happen. This 245(k) rule-making program has been on their semi-annual rule-making agenda for more than two years by now, including the current semi-annual rule making agenda. For some reasons, if you fail to file within 6 months, then file under 245(i) relief. Remeber that you are extremely lucky that you did not change employment using AC 21 I-140 portability. Had you ported and changed employment using AC 21 portability provision and you had been caught and placed under the deportation proceeding, despite your eligibility for 245(k) or 245(i) eligibility, the immigration judge would not have been eligible for I-485 green card relief in the immigration court proceeding because of the Board of Immigration Appeals decision on October 28, 2005 which I cited in the last Q&A. Good luck.

I filed concurrent I-140/I-485 based on the approved EB-3 labor certification with a priority date of June 13, 2001. The I-140 has been approved but I-485 has just been denied for my failure to respond timely the RFE. I understand that the approved labor certification and I-140 petition are still valid. Can I refile I-485 immediately using 245(k) benefits?

Analysis: Once your I-485 is denied, you need a visa number available at the time you refile I-485 application. In your case, the EB-3 visa number is not available for you at this time, and regardless of 245(k) eligibility, you cannot refile I-485 at this time. That leads to several possibilities. First, if you have been working in H-1B or L-1 visa status and you still have a valid H-1B or L-1, you can keep staying and working for the employer until the visa number becomes available. You should however pray that the visa number will become available before your H-1B 6-year limit is reached because once I-485 is denied, you are not eligible for the 7th-year extension under the AC 21 Act. There is unresolved issue of your eligibility for 3-year increment extension of your H-1B status beyond the 6-year limit during the period of visa retrogression per country limit under Section 104 of the AC 21 Act. You should carefully assess with your legal counsel the availability of this relief in your case. Should your legal counsel and you decide to try this Section 104 option, you should file Premium Processing so that you learn the decision of your H-1B three-year increment extension petition within 15 days so that you prepare for the departure from the U.S. not to accumulate 180 days of unlawful presence in the U.S. Second, if you have been working on EAD and are no longer in H-1B or L-1 visa status, since it is not likely that the visa number may become available for you within the next six months, your chance for refiling I-485 without accumulating 180 days of unlawful presence with the accompanying consequences of the three-year bar is slim. Since you are not eligible for 245(i) benefit either, it is better off that you leave the country and seek the consular processing in your country, provided that your employer will keep your permanent job offer open for you. When you are in such a steep visa retrogression, you have a better chance to survive by keeping H-1B status all the way and by not changing employment if there is any chance at all that your I-485 will be denied in the future. On the other hand, if your I-485 application is crystal clean and clear without any potential risk of denial, you do not have to maintain H-1B status and work on EAD and if the situation changes with your employment, you can change employment using AC 21 140 portability benefit. Your legal counsel should review your case very carefully to give you an advice as to which option you should take in your case while you wait for the visa number for a substantial period of time. The decision for EAD vs H-1B or AC 21 I-140 porting and change of employment pending I-485 should be substantically different between the situation when you are in steep visa number retrogression and the situation when the visa number is current for you. This decision needs a careful analysis of each individual situation by a legal expert. You should never second guess and act on your own.