Filing I-485 Prior to I-140 Approval Possible Under Limited Circumstances
Posted Jun 30, 2000
As discussed in previous issues of the MurthyBulletin, on May 4, 2000 an Order was issued instructing the Immigration and Naturalization Service (INS) to accept certain combinations of education and experience indicated on the labor certification (LC) form as complying with the advanced degree requirement for the employment-based second preference category (EB-2). Specifically, if the LC stated in Part A, item #14 that the education and experience requirements consist of a Bachelor’s degree and 5 years of subsequent progressive experience, the INS was ordered to accept that combination of education and experience as qualifications for the EB-2 category. (Prior to this order, the INS had been flip-flopping. This INS had originally acknowledged this "BS + 5" combination as sufficient for EB-2, but later decided that BS + 5 would only suffice for the EB-3 level.) The INS was also ordered to attempt to retroactively "fix" many of the problems that were created as a result of the change in their interpretations of the definition of EB2 classification.
A detailed analysis of the court order was covered in Success in EB-2 Class Action Lawsuit dated May 12, 2000.
On June 15, 2000 American Immigration Lawyers Association (AILA) attorneys involved with the class-action suit requested clarification from the INS on certain aspects of the Order.
The INS and the AILA attorneys have jointly agreed on the following:
Eligible foreign nationals (see the class member definitions below to determine who is eligible) who have current priority dates but whose I-140 petitions are still pending may file adjustment of status (I-485) applications. They may also file for permission to work, either along with the I-485 or subsequent to filing the I-485. Note: the applications must be specially labeled as mentioned in the May 12, 2000 issue of the MurthyBulletin.
I-140 and I-485 cases will be expedited if children of the foreign national are at risk of "aging-out." "Aging-out" is a term used for children who will shortly be turning 21 years old and therefore no longer eligible to obtain their Green Cards together with the parent beneficiary. Expedites will be available only upon advance written notice at least six months prior to the child's 21st birthday. Click here for a more detailed explanation of "aging-out."
In cases in which the I-140 had been denied in the EB-2 category and the foreign national had to leave the United States, such as when an H1B six-year term expired, a new and separate request for consular processing is not required in order to change the I-140 from requesting adjustment of status to requesting consular processing.
Class member definitions:
(i) Those foreign nationals whose I-140 Petitions were still pending before the INS on March 20, 2000 (where the I-140 Petition is pending either with an INS Service Center or before the Administrative Appeals Office). The court held that if an appeal has been filed or the time for filing a notice of appeal had not expired as of March 20, 2000 and an appeal was thereafter filed timely, the case would still be deemed "pending."
(ii) Those foreign nationals whose I-140 Petitions were denied by the INS or by the AAO on or after July 1, 1997, denying the EB-2 classification and for whom there is not already pending a civil action seeking judicial review of the final INS denial.
Finally, the INS is asking, where a class member does file an I-485 and a request for work authorization, that INS headquarters also be notified so that the filings can be tracked and to ensure timely adjudication. For information on notifying the INS headquarters please email our office at law@murthy.com. Please place in the subject line of the eMail "CLASS ACTION FILING REPORT FORM REQUEST."
We at the Law Office of Sheela Murthy, P.C. are delighted with the hard fought progress that has been made in this case by certain AILA members and will continue to monitor and report important developments in the MurthyBulletin.
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