USCIS on Retrogression and Concurrent Filing
Posted Jan 14, 2005
The U.S. Citizenship and Immigration Services (USCIS) issued a memo in late December 2004 regarding certain internal procedural changes in light of the retrogression of Employment Based Third Preference (EB3, skilled workers and professionals with Bachelors' degrees) visa numbers for applicants from mainland China, India, and the Philippines. This Memo, which we will call the Retrogression and Concurrent Filing Memo, does not change anything that the employer / foreign national needs to do. It changes the procedures regarding when the USCIS will rule on the I-140 and I-485 in concurrent cases. Thus, it is important in many respects and it clarifies a number of questions that arose after the EB3 retrogression.
Following we summarize highlights of this Retrogression and Concurrent Filing Memo.
Earlier Memo of March 2004 Rescinded
The Retrogression and Concurrent Filing Memo rescinds a March 3, 2004 policy memorandum regarding concurrent adjudication of concurrently-filed forms I-140/I-485 entitled "Procedural Instructions for Concurrent Adjudication of Concurrently Filed Form I-140, Immigrant Petition for Alien Worker and Form I-485, Application for Adjustment of Status," effective immediately. Regular readers of MurthyDotCom and the MurthyBulletin learned about the March 3, 2004 concurrent adjudication memo in our April 23, 2004 article, New Procedures for Concurrently Filed I-140/I-485 Cases, available on MurthyDotCom. Thus, the USCIS will resume adjudicating I-140s even if the I-485 is not ready for adjudication. No longer must the decision on the I-140 wait for the I-485 to be ready for adjudication.
Concurrent Filing Unavailable for Certain Applicants
The Retrogression and Concurrent Filing Memo confirms that, due to the retrogression of EB3 visa numbers as of January 1, 2005, affected applicants from mainland China, India, and the Philippines may not file the Form I-485 unless and until an immigrant visa number is available, as dictated by the Visa Bulletin. Concurrent filings from applicants not affected by the visa retrogression will continue. As explained in our December 24, 2004 article, Retrogression: Concurrent Filing Possible for Some, retrogression does not end concurrent filing, but rather means that certain applicants will be unable to take advantage of this procedure.
Concurrent Processing of I-140/485 Not Required
While concurrent filing is still permitted for those not affected by the visa retrogression, the processing of the Form I-140 petition is no longer tied to the Form I-485 application's readiness for processing. Therefore, the Form I-140 petition once again may be processed well before the Form I-485 application processing is completed. This will be beneficial to many who will become eligible for AC21 portability following the approval of their I-140s, where the I-485 has been pending for at least 180 days. There were great concerns that the concurrent adjudication procedure would effectively eliminate AC21 eligibility for many. In light of the significant case delay that will result from the retrogression, the ability to change jobs without destroying the green card case is vital.
Withdrawal of I-485 Tantamount to Request for CP
The USCIS states in the Retrogression and Concurrent Filing Memo that, if an applicant affected by retrogression withdraws a pending I-485, the USCIS will assume that the applicant wishes to process the case through consular processing. The I-140 petition will be forwarded to the National Visa Center (NVC) after it is approved.
I-485s Accepted until December 30, 2004
The Retrogression and Concurrent Filing Memo confirmed that, if an applicant affected by retrogression filed the Form I-485 application by December 30, 2004, it is considered properly filed and will remain pending. The USCIS must have stamped the package on or before December 30, 2004.
Alternate Chargeability Available
Applicants are instructed to indicate on their applications if they are permitted to use Alternate Chargeability, which is to be counted against the visa numbers for a country other than the one where the applicant was born. This rule permits children to be charged to their parents' country of birth, but does not permit parents to be charged to their children's country of birth. Further, an accompanying or following-to-join spouse may be charged to the principal applicant's country of birth, but the principal applicant cannot be charged to an accompanying or following-to-join spouse's country of birth.
Separate Checks Recommended
The Retrogression and Concurrent Filing Memo provides that, if an I-140 petition and I-485 application are filed together, but the I-485 cannot be filed because the visa numbers retrogressed, the USCIS can accept the I-140 petition if there is a separate check for its filing fee. The I-485 application will be rejected in this situation. If the I-140 petition and I-485 application are filed together with one filing fee check for both and the I-485 application cannot be filed due to retrogression of the visa numbers, both the I-140 petition and the I-485 application will be rejected. Therefore, it is best to use separate filing fee checks for each form filed.
Pipeline Applicants May File EADs and APs
The Retrogression and Concurrent Filing Memo defines "pipeline applicants" as those whose I-485 applications were physically received by the USCIS on or before December 30, 2004, so they are affected by retrogression. The Memo confirms that these I-485 cases will not be processed until the visa numbers become current for such cases, but that applicants will be permitted to file for Employment Authorization Documents (EADs) and Advance Paroles (APs). As explained above, the I-140s in these cases will be separately processed, notwithstanding the fact that the retrogression prevents adjudication of the I-485.
These clarifications and changed procedures are helpful. Particularly beneficial, as noted above, is the increased potential for AC21 portability under these revised procedures.
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