The U.S. Department of State released the monthly Visa Bulletin for the upcoming month of October 2020. Successively, the US Customs and Immigration Service announced that it will be accepting employment-based (I-140), adjustment of status (I-485) applications according to the priority dates listed on the Dates for Filing table. Below are some common questions we have received:
Q1: I have an approved EB-2 I-140 immigrant visa petition filed by my current employer, and my priority date would be current in October, had it been filed under the EB-3 immigrant visa category. Can my employer now file a new EB-3 I-140 immigrant visa petition, so that I can file my I-485 in October 2020?
A: Yes, if you are a beneficiary of an approved EB-2 I-140 immigrant visa petition filed by your current employer, then your current employer could file a new EB-3 immigrant visa petition on your behalf, based on the company’s previously approved PERM application so long as the job described in the PERM application remains the same as the job you will be offered if/when your I-485 is approved.
Q2: I have an approved I-140 immigrant visa petition filed by a prior employer and its priority date will be current under EB-3 according to the October Visa Bulletin. However, my current employer has not yet filed a new I-140 immigrant visa petition on my behalf. Can my current employer now file an EB-3 I‑140 immigrant visa petition so that I can now file my I-485 in October 2020?
A: This is only possible if your current employer has already secured an approved PERM application for you and was already just about to file an I-140 immigrant visa petition on your behalf. You can only proceed with filing an I‐485 application for adjustment of status if your original priority date will be current and also if you are filing your I-485 concurrently with your current employer’s I-140 immigrant visa petition. But a new I-140 immigrant visa petition under either EB-2 or EB-3 is possible only if your current employer has already obtained a PERM approval for you with the U.S. Department of Labor.
Q3: I currently have no EB-2 or EB-3 I-140 immigrant visa petition approved with any employer, nor do I have a PERM application approved with my current employer. Can I file an EB-3 I-140 immigrant visa petition, along with the I-485 adjustment of status application at this time?
No. You can only file an I-485 adjustment of status application if you already have an approved I-140 immigrant visa petition with your current employer, with a priority date that would be current in October or if you were just about to file an I-140 immigrant visa petition with your current employer in October based on a recently approved PERM application. Once your current employer’s PERM application filed on your behalf is certified by the U.S. Department of Labor your employer can then file an I-140 immigrant visa petition in the EB-2 and/or EB-3 category. But if that does not happen within the month of October 2020, we cannot know whether adjustment of status via Form I-485 will remain available to you in November 2020 or beyond. Employment-based visa availability in EB-2 or EB-3 can vary widely from month to month as described in our Visa Retrogression FAQ.
Q4: I am unable to file my I-485 in October 2020, either because my current employer has not secured for me an approved PERM application or some other reason. Will I be able to file an I-485 later in the year?
While it’s possible you will be able to benefit from the recent progression in later months, there is no way to guarantee this. Only future publications of the State Department’s Visa Bulletin, as interpreted by the USCIS, will determine if you will be eligible to file an I-485 application to adjust status in the after October. The Visa Bulletin is updated on a monthly basis. No one can say for certain whether immigrant visa numbers will progress, retrogress, or remain in place in the future. The current Visa Bulletin can be found on our website: https://www.jackson‐hertogs.com/us‐immigration/visa‐bulletin‐and‐quota‐movement‐2/.
Q5: I have an approved EB-3 I-140 immigrant visa petition with a prior employer, and my priority date would be current per the October 2020 Visa Bulletin. However, I have no approved PERM application or I-140 immigrant visa petition with my current employer. Could I approach my old employer to have them support my I-485 application in October 2020?
A: This is possible in theory but unlikely in practice. You cannot file an I-485 adjustment of status application based upon your old employer’s Form I-140 petition without also filing Form I-485, Supplement J. This Form I-485 Supplement J would require your old employer’s signature. However, your old employer cannot support any I-485 application for you unless they sincerely plan to hire you by the time any newly-filed I-485 application is approved. (Indeed, it would be unlawful for you to file Form I-485 without the intent to join the company that filed your I-140 immigrant visa petition.) As you have currently moved to a new employer, it is unlikely your old employer would intend to rehire you by the time any newly filed I-485 application was approved. If you could manage a way to quit your current employer and return to your old employer, and have your old employer support your I-485 application before the end of October 2020, then your prior employer could possibly resume your immigration process. However, our ethical obligations to your current employer would likely prevent us from discussing such a plan with you in any detail unless your current employer were aware of such plans.
Q6: In the situation where I am eligible for a downgrade and my employer agrees to file an EB-3 petition so that I can file the I-485 concurrently and take advantage of the priority date advancements, can I later switch back to EB-2 after the I-485 is filed if EB-2 dates advance faster and EB-3?
A: In theory, this is possible but it is not guaranteed and there is no specific process to follow. If you make the decision to downgrade to EB-3, you need to be prepared that while so many others are also doing so, that it is likely that EB-3 processing as a whole will be impacted and you may not be able to move your case back into EB-2. There is no way to know what the full ramifications are.
Q7: If I proceed with filing under EB-3 and my minor children file with me, will they be protected from “aging out” while the adjustment of status is pending if there is retrogression?
A: Yes. By filing the adjustment of status when eligible, the child’s age is frozen and the child will not “age out” of the process when s/he reaches 21 years of age if the application is still pending.
Q8: I have an approved I-140 immigrant visa petition with a prior employer, and my priority date would be current per the October 2020 Visa Bulletin. However, I have no approved PERM application or I-140 immigrant visa petition with my current employer. Can I still apply for an Employment Authorization Document (EAD) and Advance Parole (AP)? What about under category (c)(35) or (c)(36) for Employment Authorization in Compelling Circumstances?
A: The EAD and AP applications are part of the Form I-485, Adjustment of Status application and can only be filed along with your I-485. If you do not have an approved I-140 immigrant petition with your current employer and a current priority date, then you cannot apply for an EAD/AP due to a pending Adjustment of Status application.
Applying for an EAD under categories (c)(35) and (c)(36) is permitted in rare and compelling circumstances and it is not recommended. If you receive a compelling circumstances EAD, and begin working based on this EAD, you will no longer be maintaining your nonimmigrant status.
Q9: I have an approved EB-2 I-140 immigrant petition filed by my current employer but my priority date is NOT current in October under the EB-2 or EB-3 category. However, the EB-3 immigrant category in October is much closer to my priority date. Should I ask my employer to file a new EB-3 I-140 immigrant petition now in anticipation of more favorable advancement dates to come in the EB-3 category?
A: It is not recommended. Please remember that the visa bulletin numbers change monthly and we have notice of this change in advance. This means if the EB-3 category becomes current for you in the future, we will have the ability to file the new EB-3 I-140 for you at that time along with the adjustment of status (assuming the necessary approvals are obtained). Furthermore, please note that it is possible there will be a large influx of new EB-3 immigrant visa petitions filed over the next few weeks for those who are current, which could shift the advantage between EB-2 and EB-3.
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