Tuesday, September 20, 2022

EMPLOYMENT-BASED GREEN CARD CASES FOR THE COMING YEAR

The USCIS recently posted updated processes and procedures for green card cases filed during Fiscal Year 2023 (FY2023) which ends on September 30, 2023.  Below is a short summary of the key issues regarding the coming fiscal year’s green card cases.

The US Department of State estimates the annual allotment of employment-based green cards will be approximately 200,000 due to unused family-based visa numbers from FY 2022 (ending September 30, 2022).  Please see our previous blog post for an explanation of the unused family-based numbers flowing into the employment-based category.  Each year there are 140,000 green cards allocated for employment-based cases by statute; the coming year’s allotment of 200,000 is a large increase in available green cards.

Q: If there is an increase in available green cards, why have the Indian EB2 numbers retrogressed in October 2022?

A: The DOS and USCIS estimate the annual usage of green cards based on the number of pending applications.  When estimating how many green cards will be approved, the DOS and USCIS consider the following factors:

  • A percentage of the pending applications will not be approved for a variety of reasons;
  • An accounting for applicants who have more than one green card application pending;
  • An estimate of the number of dependents who will be included on the   application; and
  • How far along in the application process the pending cases are, e.g. how     likely it is to result in the use of a green card during the coming months.

Given these factors, the DOS and USCIS estimate the Indian EB2 category is still oversubscribed and so applied a cut-off date.

Q: Does retrogression affect my priority date or place in line for a green card?

A: No, retrogression does not impact or change your priority date or place in line.  Retrogression only means a green card is not immediately available to applicants in certain categories. 

Q: My category retrogressed, what is my path forward to a green card if I am in the US and have filed my I-485?

A: The USCIS will hold your pending I-485 until your priority date becomes current and a green card is available.  During the time your I-485 is pending with the USCIS, even if your category is retrogressed, you can:

  • Apply for a work authorization card also called an EAD;
  • Apply for a travel authorization card also called Advance Parole or AP;
  • Once your I-485 has been pending with the USCIS for more than 180 days, you can “port” your pending green card application to a new employer who provides a qualified job offer; and
  • Your dependent children may be eligible for benefits under the Child Status Protection Act (CSPA) (for more specific information abut the CSPA please contact your MU attorney).

You are considered to be in a “period of authorized stay” while your I-485 is pending.

Q: I did not file my I-485 with a medical exam (form I-693), should I affirmatively send in a medical exam or wait until the USCIS issues an RFE (request for evidence) or deficiency notice asking for a medical exam?

A: The USCIS requests applicants not send in a medical exam until the USCIS requests the medical exam via RFE or deficiency notice.  Immigration files are often transferred between USCIS offices to process the cases as quickly as possible.  USCIS indicates it is difficult to match an unsolicited medical exam to a pending case.

Q: How does the transfer of underlying basis request work?

A: If an applicant has two or more approved I-140s, the applicant can request that the USCIS move the pending I-485 from one I-140 to another.  This request must be made in writing and include a form I-485j where appropriate.  Applicants must affirmatively request a transfer of underlying basis; the USCIS does not review the applicant’s files and transfer the I-485 automatically when an I-140 becomes current in a different category.  All transfer requests are reviewed and granted at the discretion of the USCIS.

Q: When the USCIS adjudicates the principal applicant’s I-485, does the USCIS also adjudicate the I-485 of the dependent family members?  What happens if a dependent family member’s I-485 is not approved and the priority date of principal retrogresses?

A: USCIS makes every effort to adjudicate all family members’ cases together.  However, each case is treated independently and has unique factors of review.  If a principal applicant’s I-485 is approved, but a dependent applicant’s I-485 remains pending, and the priority date of the principal applicant retrogresses, the dependent’s I-485 will remain pending with the USCIS until the principal’s priority date becomes current again.

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