USCIS to accept I-485s through August 17th

News Release from Jewell & Associates - July 17, 2007

We are delighted to report that the government has announced that it is withdrawing its July Visa Bulletin #108 and reverting to July Visa Bulletin #107, which makes all employment-based categories CURRENT for the rest of July (and in fact until August 17, 2007, to make up for the “lost” time created by the improvidently issued July Visa Bulletin #108).

This is a just and reasonable resolution to the recent controversy surrounding actions earlier this month by the U.S. Department of State (DOS) and U.S. Citizenship & Immigration Services (USCIS) to overrule DOS’s July 2007 Visa Bulletin #107.  Under today’s announcement, regardless how recent the priority date (the filing date of an approved labor certification application or, in labor certification-exempt cases, the filing date of the I-140 immigrant petition), all employment-based immigrants may advance to the final stage of the green card process by filing their I-485 adjustment-of-status (AOS) applications with USCIS on or before Friday, August 17, 2007 -- concurrently with the I-140 immigrant petition if the I-140 was not already filed.  Applicants whose I-485s were received at USCIS on or after July 2nd and have been held there pending resolution of the controversy do not need to re-file.  USCIS intends to accept those filings and process them.

© Jewell & Associates 2007

I-485 filings in July 2007

News Release from Jewell & Associates - July 2, 2007

As many readers are aware, the U.S. Department of State (DOS) published its July 2007 Visa Bulletin in mid-June, announcing that, for the month of July, all employment-based immigrant categories would be “current.” This meant that, regardless how recent the priority date (the filing date of an approved labor certification application or, in labor certification-exempt cases, the filing date of the I-140 immigrant petition), all employment-based immigrants could advance to the final stage of the green card process by filing their I-485 adjustment-of-status (AOS) applications with USCIS in July -- concurrently with the I-140 immigrant petition if the I-140 was not already filed.  DOS’s stated purpose in opening up all categories for the month of July was to generate “increased demand” for immigrant visas that could be granted before the end of the government’s fiscal year on September 30, 2007.  The U.S.’s immigration scheme allows for 140,000 employment-based immigration visas (green cards) to be approved each year.  The Department of Homeland Security, through its immigration agency USCIS, was thought to have approved only a fraction of the 140,000 green cards allowed, so DOS’s response was to make all categories “current” for July in order to bring more approvable applications into the system before the end of the fiscal year.

It is unprecedented for DOS to revise a published Visa Bulletin, but this morning DOS placed its July Visa Bulletin in the “archives” section of their web site and announced that, because USCIS claims it has suddenly approved 60,000 green card applications in the past month, DOS will allocate no more visa numbers this fiscal year.  DOS does not say so explicitly, but the implied message is that DOS believes USCIS will come close to approving all 140,000 green cards for FY-2007, so there is now no need to let more applicants into the system in July.  USCIS then followed up with its own announcement today, stating that it will reject all I-485s received today and afterwards, in all employment-based immigrant categories.  This does not affect the filing of I-140s, which will still be accepted.  It is only the I-485s USCIS is rejecting, and apparently in all employment-based immigrant categories for all countries of birth and all priority dates.

It is notable that the USCIS announcement today appears to contravene USCIS’s own regulation at 8 CFR Section 245.1(g)(1), which states:

(g) Availability of immigrant visas under section 245 and priority dates --

(1) Availability of immigrant visas under section 245. An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 is the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Many applicants’ I-485s (with I-140s if applicable) arrived at USCIS today.  Others will be delivered tomorrow or later in the week or month.  Other would-be applicants have chosen to pursue their I-140s, but to hold off on filing their I-485s until there is a clear signal from the government that the I-485s will be accepted.  We do not believe that any of these approaches is wrong or potentially harmful.   USCIS will simply keep and process any I-140s it receives, and will return all I-485s for re-filing later.  In view of this, filing the I-485 may seem a wasted effort.  On the other hand, it is possible that the government will be sued in a class action law suit over its recent actions.  In that case, individuals who attempted to file I-485s and had them rejected or returned may have stronger claims to benefit from a favorable result in the law suit.

© Jewell & Associates 2007

New DOL regulations affecting labor certifications

News Release from Jewell & Associates - May 17, 2007  Today the U.S. Department of Labor (DOL) published regulations, effective July 16, 2007, that affect labor certifications (the first step in the employment-based permanent residence, or “green card,” process). While the thrust of the new regulations is to preclude fraud and an underground market in labor certifications, several provisions are broadly written and thus will affect all employers who file labor certification applications.  Specifically, the regulations introduce three changes that will influence the permanent residence process:

  • Validity period established for approved labor certifications (“use it or lose it”) - Starting July 16, 2007, an approved labor certification, which until now had no expiration, will be valid only for 180 days. Labor certifications issued before July 16, 2007 will expire on January 11, 2007.  Labor certifications issued on or after July 16, 2007 will expire 180 days from the date of issuance.  If an approved labor certification is not used (i.e., not filed with USCIS in support of an I-140 immigrant petition) within its validity period, it will be forfeited.  This requirement to file the I-140 immigrant petition within 180 days of the issuance of the labor certification underscores the importance of taking the time to prepare the I-140 at the same time the PERM labor certification application is being prepared. Hastily preparing and filing a PERM application, only to discover later that the necessary I-140 supporting documents cannot be mustered within 180 days, is poor planning.  The best practice is to lay the groundwork for the I-140 petition before the labor certification recruitment begins.  That way, the I-140 is ready to be filed very soon after the labor certification is issued.
  • Substitution of employees no longer permitted – As of July 16, 2007, it will not be possible to substitute an employee into a labor certification that was originally filed on behalf of a different employee.  Companies with “spare” labor certifications, issued in the names of departed employees and never used, will not be able to request substitution of beneficiaries as of July 16, 2007.
  • Payment by employee of labor certification legal fees and costs prohibited - Finally, the most controversial part of the new regulations severely restricts the ability of an employer and employee to share the legal fees and costs associated with a labor certification application, and restricts the ability of the employer to seek reimbursement from the employee for those legal fees and costs.  Where the same attorney or law firm represents both the employer and the employee in a labor certification matter (as is normally the case), or represents the employer exclusively, the employer must bear all of the labor certification-related legal fees and costs and may not seek reimbursement from the employee in any form.  Seeking or receiving payment of any kind from the employee may subject the employer to the severe penalty of “debarment,” i.e., being prevented for a period of time from filing any labor certification applications.   The new regulations thus call into question the continued legality, as of July 16, 2007, of most typical repayment agreements that employers enter into with employees to encourage the employee to remain on the job for a period of time after green card sponsorship begins.  It would be advisable for employers to suspend the use and enforcement of such agreements as of July 16, 2007.  This controversial regulation may eventually be litigated and struck down, but until that occurs, the regulation must be regarded as law.

© Jewell & Associates 2007