Analysis of EB2 Forward Movement in Aug 2008

As reported in last week’s MurthyBulletin, the U.S. Department of State (DOS) Visa Bulletin holds some very good news in the employment-based, second preference (EB2) category for nationals of certain countries. The cutoff dates for India and China were advanced in excess of two years – to June 1, 2006. More on this development can be found in our July 18, 2008 article August 2008 Visa Bulletin: EB2 India/China Jumps Forward. This has generated some questions and misunderstandings among our clients and readers of MurthyDotCom and the MurthyBulletin. Here, some of those concerns are addressed and clarifications provided on common misperceptions.

Only Qualifying I-485s can be Approved in August 2008

Many people assume that their pending I-485s will be approved in August 2008, simply because the cutoff dates have moved forward dramatically in the Visa Bulletin for August 2008. The Visa Bulletin reflects that there is availability of visa numbers for cases in EB2 that have priority dates of earlier than June 1, 2006. However, the Visa Bulletin is a DOS publication that relates to visa number availability. It is not a United States Citizenship and Immigration Services (USCIS) document to inform the public of the progress that has been made in case processing. It does not mean that the USCIS is working on all the cases with qualifying priority dates. The USCIS processes cases based upon filing date order and can only approve the I-485 when the priority date is current. This means that both conditions must be met for the USCIS to approve the Adjustment of Status (I-485) application. Approximations of the USCIS processing dates are accessible from the USCIS service centers. Find them through the times page on MurthyDotCom.

In simple terms, the USCIS starts to process I-485 cases based upon when they were filed. If a visa number is available at the time of review, and everything else is acceptable, the case can be approved. If the case is acceptable, but there is no visa number, it must be shelved until the visa number is available, meaning that the priority date becomes current again. The USCIS has many cases that have been reviewed and shelved because of a shortage of visa number availability. It has a system for identifying cases regularly and finalizing them when visa numbers become available.

Not All Pre-June 1, 2006 EB2 Cases Will be Approved

The movement of the cutoff dates to June 1, 2006 does not actually mean that there are enough available visa numbers for the USCIS to approve all EB2 cases with priority dates before June 1, 2006. The DOS is trying to ensure that the visa numbers are not unused and, therefore, wasted at the end of this fiscal year, which is September 30, 2008. So, it sets a generous cutoff date to expand the number of potentially eligible I-485s that the USCIS may review and approve before September 30, 2008. DOS estimates are based on information received from the USCIS regarding pending I-485 cases, as well as information from the U.S. consulates regarding immigrant visa demand levels.

Thus, not all of the I-485 cases with qualifying dates will be approved in August 2008. An approval is determined both by the limited immigrant visa number and by the USCIS’s ability to process the case. Though it is anticipated that many people will receive approvals in August 2008, no one should assume that his/her case is guaranteed an approval. One way to increase the chances of an August approval is the filing of a Writ of Mandamus lawsuit, should the facts of one’s case support it and if the case has been unreasonably delayed substantially beyond the current processing times.

Renew the EAD in a Timely Fashion

As a corollary to the assumption made by many that their I-485s will be approved in August, people are wrongly assuming that they do not need to extend their Employment Authorization Documents (EADs) and Advance Paroles (APs). If one is using the EAD in order to work in the U.S., then s/he should file a prompt request to renew that permission. EAD renewals can be filed 120 days in advance of the expiration date. They generally take about 90 days to process. Thus, if one fails to file far enough in advance, there is the risk of a gap in the authorization for employment. Typically, the potential for lost earnings would greatly outweigh the cost of the EAD renewal.

Renew the AP Timely

The AP is needed for travel abroad and reentry to the U.S. while the I-485 is pending, if one is not maintaining a valid H1B, H-4, L-1 or L-2 nonimmigrant status. The urgency of filing an AP renewal depends upon the need for personal or business travel. Even individuals with no travel plans should consider the possibility of family emergencies, if they have close relatives living abroad. While there are times when the AP can be expedited for emergency situations, this is not a guarantee and it adds enormously to an already stressful emergency situation.

Renewing the Nonimmigrant H or L Status

The same issues arise with respect to renewing H1B, H-4, L-1 or L-2 status. There is more flexibility with the nonimmigrant extensions than with the EAD/AP. Thus, depending upon the expiration date, a person with an H1B or L-1 may choose to wait during the month of August 2008 (unless the H1B or L-1 expires during Aug 2008), to see if her/his I-485 is approved. H-1 and L-1 status extensions can be filed at any point up until the expiration of the existing I-94. For most, the timely filing of the extension of the H-1 or L-1 also extends permission for employment. Thus, while it is best not to wait until the last minute, there may be an option to delay the H-1 or L-1 filing, to see what happens with the I-485 application in August.

Example:

An individual’s H1B status expires October 1, 2008. S/he has an I-485 that was filed June 15, 2007. The I-140 has been approved and the person has completed fingerprinting. The priority date is prior to June 1, 2006 in EB2. His/her employer could file the H1B extension up to six months in advance of Oct 1, 2008. As of mid-July, however, the H1B has not yet been filed.

This individual’s employer could wait to see what happens in August with the I-485. If it is approved, there is no need to file the H1B extension. If it is not approved and the Visa Bulletin cutoff date for September is such that the case cannot be approved in September, the H1B extension should be filed without further delay. If, based upon the content of the September Visa Bulletin, there is still the possibility of an approval in September 2008, the H1B extension potentially could wait during early September. However, it should not wait until the last minute, so the H-1 should be prepared for filing by at least a week or ten days before the October 1st expiration of the H1B I-94.

Projections of EB2 Movement in September 2008

Many who have contacted the Murthy Law Firm are wondering what the September 2008 Visa Bulletin will look like in terms of cutoff dates. This cannot be predicted. September is the last month in the 2008 Fiscal Year. Thus, if the USCIS approves enough cases in August 2008 to deplete the remaining EB2 visa numbers, the category could become completely unavailable, like the EB3 quota. Alternatively, if the USCIS cannot process enough cases to use all the immigrant visa numbers in August, the cutoff date could even move further forward, to allow for sufficient approvals to use up all the immigrant visa numbers by the end of the fiscal year (September 30, 2008). Or, the result could be somewhere in between, with some small amount of numbers remaining available, so that the cutoff dates retrogress. What will happen will not be known until the September 2008 Visa Bulletin is issued, which in anticipated sometime after about the tenth of August.

Conclusion

The forward movement of the Visa Bulletin is a favorable development and an opportunity for some to obtain the I-485 approval during August 2008. We at the Murthy Law Firm hope that the month of August brings good news to so many of our readers, hoping for years for their “green card” approvals. It is important to be realistic, however, and to understand the meaning of the cutoff dates under the August Visa Bulletin. One should hope for the best, but be prepared to continue waiting for a decision and consider extending the EAD/AP and/or nonimmigrant status, as needed.