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USCIS Addresses Employment-Based Adjustment of Status Questions
Even on seemingly innocuous, administrative instructions USCIS has flip flopped, changing its mind and rescinding its directives.
For the uninitiated, employers and employees had their heads spun during July because of rapidly changing and often conflicting governmental policy positions on who can file for permanent resident (“green card”) status. We have covered the twists and turns as they have unfolded in Special Alerts, and directly with our clients. See our Special Alerts on employment-based visa availability in July. Now, the U.S. Citizenship and Immigration Services (USCIS) has issued two sets of Frequently Asked Questions (FAQs) and answers that seek to provide some practical advice and the implications of its shifting positions on employment-based adjustment of status eligibility. Although USCIS has propounded 32 FAQs, which like past pronouncements sometimes lack clarity, here are the “highlights”: In order for USCIS to accept an employment-based adjustment of status application on or before August 17, 2007, the foreign national must have a priority date (place in line for his or her immigrant visa) prior to August 1, 2007. Practically speaking, this means that unless a labor certification application or an immigrant visa petition has been filed for the foreign national before August 1, 2007, he or she is not eligible to file for adjustment of status until his or her priority date is again current. In other words, although an I-140 immigrant visa petition can be filed under the extraordinary ability, intracompany transferee, or outstanding researcher categories at any time, for example, the beneficiary of such petitions cannot file for adjustment of status on or before August 17, 2007 unless a petition was filed for them before August 1, 2007. The same holds true for labor certification beneficiaries, exceptional ability and national interest waiver petitions. To learn more about priority dates and the employment immigrant visa system, please see our July issue of Immigration News & Analysis.
- Adjustment of status applications can be filed without the required medical examination report. This is a reversal of previous USCIS policy.
- Premium processing of I-140 employment-based immigrant visa petitions has been suspended until further notice. Thus, although a priority date can be established by filing an immigrant visa petition now, it would not be possible to obtain a decision within 15 business days by paying a $1,000 premium processing fee to USCIS.
- The old filing fees apply only to adjustment of status applications filed for employment-based visas on or before August 17, 2007. The underlying I-140 petition, however, requires the new $475 fee, whether or not the I-140 is filed concurrently with an employment-based adjustment of status application. USCIS reiterated that it will reject any applications accompanied by the incorrect filing fee.
- While under the new fee rule, an applicant will pay one, bundled fee for an adjustment of status application, which includes the “green card” as well as the employment authorization document (EAD) and advance parole (AP) during the pendency of the green card application, those individuals who applied for a green card before the new fees went into effect will need to continue to pay each time they need to renew the EAD and AP.
- The high volume of employment-based adjustment of status applications resulting from these new USCIS policies are likely to cause delays in the issuances of receipts, advance parole travel authorization, and employment authorization documents.
Adding to the confusion over the last few weeks has been the question regarding which version of the applicable forms must be used. USCIS posted new I-485 (adjustment of status) and I-765 (employment authorization) forms on its web site but did not clarify whether older version of these forms could be accepted. Typically, there is a period of time (e.g., 30 days) during which an older version of a form will be accepted by USCIS after a new one is issued. USCIS finally clarified its policy, advising that an error had been made and older forms would be accepted for at least 30 days after July 30, 2007.
Even on seemingly innocuous, administrative instructions USCIS has flip flopped, changing its mind and rescinding its directives. For example, USCIS announced that it would discontinue the use of “prepaid mailers” for issuing receipts and notices only to change its policy four days later, announcing that it would continue to accept such mailers for now and that the process would continue to be reviewed. While obviously not a significant example, this pattern of repeatedly reversing itself is indicative of how USCIS has been operating: ineptly. USCIS does itself no favor at a time when public confidence in the agency is not very high.
Much of what has transpired in the last six weeks has been outside of the normal rulemaking process, which provides public notice and comment as well as interagency vetting and deliberation. This has led, in part, to decision-making by the agency that has been hasty, reactive, and not properly reflective or thought through. By fixing one issue, USCIS has created more questions, more problems, and potentially more delays - precisely the reason for employment-based debacle in the first place: Department of State did not want USCIS’ adjudication delays to result in unused visa numbers and thus it issued the original July Visa Bulletin announcing widespread employment-based visa availability. Surely, immigration policy-makers will take notice and see that the immigration system must be fixed.