Tag Archive for: AC 21

Cyrus Mehta

Guide to Terminated Noncitizen Workers: Preserving Nonimmigrant Status and Permanent Residency Options

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By Cyrus D. Mehta

The sudden layoffs of nonimmigrant workers in H-1B and other statuses at Twitter and other tech companies in the US create additional concerns as their visa status is tied to the employer. Those who have been sponsored for permanent residence face additional concerns. We provide a quick guide to employees who have been laid off and how they can still be able to take steps to remain in status, and take advantage of the priority date already established on their behalf if they have been sponsored for permanent residency.  Although this blog provides guidance to terminated nonimmigrant workers, our recent prior blogs,  here and here, guide employers on their obligations when nonimmigrant workers are terminated

60 Day Grace Period

 As discussed in our prior blog, 8 CFR §214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days upon a cessation of their employment. The 60-day grace period is indeed a salutary feature and was not around during prior disaster episodes. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all time, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on their own, such as to F-1, after enrolling in a school. If the worker may need more time to leave the US beyond the 60 days, they can apply for a change to B-2 visitor status. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR §214 .1(c)(4) and 8 CFR §248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

Thus, an H-1B worker who has been terminated may be able to seek another employer to file an extension of status on their behalf within the 60 day grace period. As this worker has already been counted under the H-1B cap, the employer will not need to register under the next H-1B lottery and can immediately transfer H-B status through the new employer.

The maximum time that a noncitizen can spend in H-1B status is six years. If the worker has spent less than six years in the US, they can seek to obtain the remainder of unused time in H-1B status for a maximum of six years. Any time not spent in the US during the prior H-1B status period can be recaptured based on trips made abroad. See 8 CFR 214.2(h)(13)(iii)(C).  If the individual is the beneficiary of an approved I-140 petition, and the final action date is not yet current under the State Department Visa Bulletin in the employment second (EB-2) or employment third preference (EB-3), the worker can obtain a three year H-1B extension even beyond the six years until the date has become current pursuant to § 104(c) of the American Competitiveness in the 21st Century Act. If the final action date is current under EB-2 or EB-3, the worker is entitled to a one year H-1B extension beyond six years under §106(a) of AC21. However, if an I-485 adjustment of status application has not been filed within one year, a worker may be precluded from talking advantage of the one year extension unless it can be shown that failure to file an immigrant visa or adjustment of status application was beyond the worker’s control, and this has been further explained in our prior blog.

Although a laid off L-1 worker will also be able to avail of the 60-day grace period, and is entitled to a maximum of seven years if in L-1A status or five years if in L-1B status (including recaptured time), filing an L extension through another employer would be challenging as the worker has to demonstrate that they have had one year of qualifying experience in an executive, managerial or specialized knowledge capacity for a parent, branch or subsidiary of the US entity in the past three years. If the employer can only file a change of status to H-1B, then unless the worker has previously been counted under a prior H-1B cap, they will have to wait to be registered in the next H-1B lotter in March 2023. Other options could include changing status to  O-1A if the terminated L-1  worker can qualify as a person of extraordinary ability.

 

Garden Leave and Nonproductive Status

What is less clear is when termination occurs with respect to an H-1B worker. An employer can terminate on November 1, 2022 and still pay the employee the full wage but keep this person in a nonproductive status for several weeks or months. Let’s assume in this example that the worker is terminated on November 1, 2022, but continues to be paid from November 1, 2022 till December 1, 2022 while in nonproductive status. This nonproductive period is known as “garden leave” where the terminated worker is still considered an employee but not required to engage in productive work for the employer. The employer utilizes “garden leave” to disincentivize the employee from immediately working for a competitor or as part of a severance agreement. Does the termination in this scenario occur on November 1, 2022 or on December 1, 2022, which is when the garden leave period ends and the worker ceases to receive a salary in accordance with the terms of the H-1B petition?

According to a June 2020 USCIS Policy Memo, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would be safer to consider the termination as occurring on November 1, 2022 rather than December 1, 2022. Yet, the USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act, even if the worker is not paid.

The USCIS also gives the officer discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

A terminated H-1B worker may need more time to find another job and thus extend the commencement of the grace period to a later date, especially when the worker continues to be paid and treated as an employee during the nonproductive status. There might be a basis for the termination date to be December 1, 2022 rather than November 1, 2022 given that the USCIS allows the officer to assess the circumstances and time spent in nonproductive status, although it would be far safer and more prudent to consider November 1, 2022 as the termination date.

One should also note a 1999 advisory opinion concerning reductions in force.  USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status. However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.”

 

Termination after Employment Sponsorship for Permanent Residence Already Commenced

 If the worker is already the beneficiary of an approved I-140 petition and is terminated, a new employer in addition to transferring the H-1B status may also file a new labor certification, and upon approval, file another I-140 petition. The priority date of the prior I-140 petition can still be retained.

Under 8 CFR 204.5(p), an employment authorization document (EAD) may be issued to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and if their priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble to the high skilled worker rule, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

Anecdotal evidence suggests that USCIS has been very niggardly in issuing employment authorization under compelling circumstances.

If the Form I-485 application has been pending for 180 days or more, the worker can exercise job portability under INA 204(j) by taking up a job or being offered a job in a same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising portability under INA 204(j). The applicant will need to submit Form I-485, Supplement J.

Under 8 CFR 245.25(b), “[t]he term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.”

It is also possible for an adjustment applicant to “port” to self-employment if employment prospects are bleak.

[This blog is for informational purposes, and should not be viewed as a substitute for legal advice]

 

 

 

 

 

 

Cyrus Mehta

Preserving H-1B Extension For Spouse And Freezing Age Of Child In Rule Impacting High-Skilled Nonimmigrant Workers

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The purpose of this blog is to draw attention to two little know legal concepts, which must either be preserved or introduced through the proposed rule entitled Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers”. They are concepts worthy of promotion since they would greatly benefit delayed green card applicants, especially with respect to extending H-1B status beyond the six years and freezing the age of a child under the Child Status Protection Act under a new I-140 petition. While there are many other proposals in need of repair and improvement, I focus on these two since I have dwelt on them with passion in past blogs, here and here, and now is a time to advocate for their inclusion in the proposed rule.

This rule when finalized will provide relief to skilled immigrants who are presently on nonimmigrant visas and are caught in the crushing employment-based backlogs. The centerpiece of this rule would allow beneficiaries of approved employment based immigration visa petitions, known as I-140 petitions, to apply for an employment authorization document (EAD), although it has disappointed many by setting stringent criteria, which would deter most from taking advantage of it. This has been addressed in my prior blog – Allowing Early Adjustment Filing in Proposed Rule Impacting Skilled Workers Would Give Big Boost to Delayed Green Card Applicants. Those who are disappointed must continue to forcefully advocate so that EADs can be granted to deserving beneficiaries of approved I-140 petitions less restrictively in the final rule.

Preserving the Ability Of H-1B To Seek H-1B Extension Based On Other Spouse’s Labor Certification

The American Competitiveness in the 21st Century Act (AC 21) allows for an extension of H-1B visa status beyond the statutory time limitation of six years for those who cannot obtain a green card within this period. There are two pivotal provisions. AC 21 §106(a) allows for one year H-1B extensions beyond the sixth year if a labor certification application or I-140 petition was filed at least one year prior to the last day of the alien’s authorized admission in H-1B status. Under second provision, AC 21 §104(c), the beneficiary of an approved I-140 petition can seek an H-1B extension for three additional years if it can be demonstrated that he or she is eligible for permanent residence but for the per country limitation.

The proposed rule seeks to provide this benefit only to the principal beneficiary and not to the spouse, assuming both are in H-1B status. While it is true that the other spouse who is not the direct beneficiary of a labor certification or I-140 petition can change status from H-1B to H-4 status, and seek an EAD as an H-4 spouse under the recently promulgated rule that allows for this, experience has shown that this can be a long process. Changing from H-1B to H-4 status can take several months, and there would also be additional delays in receiving the EAD. Even if the H-1B spouse proceeds overseas to apply for an H-4 visa, it would take at least 90 days before the H-4 spouse can obtain the EAD after being admitted into the US in that status. It is thus more convenient for the spouse who is also in H-1B status to continue to extend that H-1B status, and not disrupt his or her employment.

The rationale for not allowing a spouse who is also on an H-1B visa to use the other spouse’s labor certification or I-140 petition is not very convincing. The preamble discusses AC 21 §104(c), which limits H-1B nonimmigrant status beyond the six-years to the ‘beneficiary of a petition filed under section 204(a) of [the INA] for a preference status under paragraph (1), (2), or (3) of section 203(b) [of the INA].” According to DHS’s logic, INA §203(b) applies only to principal beneficiaries, but not to derivative beneficiaries who are separately addressed in INA §203(d). The preamble also emphasizes that §104(c) refers to “the beneficiary” in the singular. The DHS uses this same logic to deprive the other H-1B spouse from extending H-1B status one year at a time based on the other spouse’s labor certification or I-140 petition filed 365 days prior under AC 21 106(a).

Unlike AC 21 104(c), which the DHS focused on, there is a clearer basis in AC 21 106(a) to allow an H-1B spouse to seek a one year extension of H-1B status beyond six years when the other spouse is the beneficiary of an appropriately filed labor certification.

On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act (“21st Century DOJ Appropriations Act”) took effect and liberalized the provisions of AC21 that enabled nonimmigrants present in the United States in H-1B status to obtain one-year extensions beyond the normal sixth-year limitation. See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The new amendments enacted by the 21st Century DOJ Appropriations Act liberalized AC21 § 106(a) and now permits an H-1B visa holder to extend her status beyond the sixth year if:

  1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status under the Immigration and Nationality Act (“INA”) § 203(b), 
  2. 365 days or more have passed since the filing of an Employment-based immigrant petition under INA § 203(b). 

Previously, AC21 § 106(a) only permitted one-year extensions beyond the sixth-year limitation if the H-1B nonimmigrant was the beneficiary of a labor certification or an I-140 petition, and 365 days or more had passed since the filing of a labor certification application or the I-140 petition. See Pub. L. No. 106-313, 114 Stat. 1251 (2000). The term “any application for labor certification” was absent in the original version of AC 21§106(a). Even under this more restrictive version of AC21 § 106(a), the Service applied a more liberal interpretation, permitting H-1B aliens to obtain one-year extensions beyond the normal sixth-year limitation where there was no nexus between the previously filed and pending labor certification application or I-140 petition and the H-1B nonimmigrant’s current employment. This is now fortunately preserved in the proposed rule, but there is no reason to also not allow a spouse to use “any” application for labor certification, which could be the labor certification filed on behalf of the other spouse.

With regards to the absence of INA §203(d) in AC21 §104(c) or §106(a), does this suggest that that only the principal spouse can immigrate under INA §203(b) and the derivative needs INA §203(d)? But INA 203(d) states that the spouse is “entitled to the same status, and the same order of consideration provided in the respective subsection (INA § 203(a), § 203(b), or § 203(c)), if accompanying or following to join, the spouse or parent. Thus, the derivative spouse still immigrates under INA 203(b).” INA § 203(d), which was introduced by the Immigration Act of 1990 (“IMMACT90”), is essentially superfluous and only confirms that a derivative immigrates with the principal. See Pub. L. No. 101-649, 104 Stat. 4978 (1990). Prior to IMMACT90, there was no predecessor to INA § 203(d), and yet spouses immigrated with the principal. Thus, it is clear that a spouse does not immigrate via INA § 203(d), and the purpose of this provision is merely to confirm that a spouse is given the same order of consideration as the principal under INA § 203(b).

In conclusion, there is a very good argument under AC 21 §106(a) that the H-1B spouse can use “any” labor certification, which includes the labor certification filed on behalf of the other spouse, to seek an additional one year H-1B extension. Furthermore, there is also an equally good argument, applicable under both AC 21 §106(a) and §104(c), that the exclusion of the mention of INA §203(d) is not fatal as a derivative spouse also ultimately immigrates under INA §203(b). The fact that “beneficiary” is mentioned in the singular and not in the plural should also not undermine support for the notion that any beneficiary, either as principal or spouse, can qualify for an AC 21 H-1B extension who is capable of immigrating under a labor certification or I-140 petition, or both. DHS must interpret existing ameliorative provisions in AC 21 that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a way that reflects the intention behind the law.

On a separate note, there is also no need to penalize an H-1B worker from availing from an AC 21 H-1B extension if s/he fails to file an adjustment application or make an application for an immigrant visa within 1 year of availability. If the rule allows an H-1B extension based on a labor certification or I-140 petition filed by another employer, it may take some time for the new employer to obtain another labor certification and I-140 approval. The exception provided in the rule for failure to file within 1 year should include this circumstance, where the applicant is waiting for another labor certification and I-140 petition through a new employer.

Freezing The Age Of A Child Under The Child Status Protection Act Even Through A New Petition

 One of the bright spots in the proposed rule at 8 CFR §204.5 is to clarify that even if an I-140 petition is revoked by the employer, the priority date of that I-140 petition can still be used if a new employer files another I-140 petition. Even if the earlier I-140 petition is not revoked, and the same employer wishes to upgrade from an EB-3 I-140 to an EB-2 I-140 petition, the priority date of the earlier EB-3 I-140 petition can still be retained. The ability to retain an old priority date always existed in the rule, but the proposed rule also clarifies that retention of the priority date is further permissible when an employer revokes a petition or goes out of business.

The key issue is whether the new I-140 petition would be able to continue to protect the age of the child under the CSPA even if it is filed after the child has turned 21. We assume that the prior I-140 petition froze the age of the child under the CSPA age protection formula because it was filed prior to the child turning 21, the date became current, and an I-485 adjustment application was filed within one year of visa availability. There are many beneficiaries under this scenario, including the class of 2007 adjustment applicants whose priority dates under the India EB-3 have not become current after they retrogressed in August 2007.Alternative, we assume that when the priority date of the earlier I-140 becomes current, it would still potentially be able to protect the age of the child. At issue is whether the new I-140 petition continues to protect the age of the child.

The CSPA, as codified in INA 203(h), applies to the “applicable” petition, and without further clarification it may be difficult to bootstrap the new I-140 onto the “applicable” prior I-140 petition, which is no longer being utilized but was filed before the child’s 21st birthday. There is room to interpret the term “applicable” petition to include the new I-140 petition, especially since the new I-140 petition recaptured the priority date of the old I-140 petition. This should be made explicit in the final rule where the new I-140 petition is considered the “applicable” petition for purposes of protecting the age of the child under the old petition. If an old I-140 petition revoked by an employer can be used for purposes of preserving the priority date in a new petition, port to another employer or seek an AC 21 H-1B extension, it should also be preserved for preserving the age of a child under the CSPA. Similarly, even if the I-140 petition is not revoked, a new I-140 petition, filed either by the same or new employer should be able to freeze the age of the child if the old I-140 petition was able to do so.

Conclusion

 It is important that everyone impacted by this rule should strive to improve it by submitting comments. We will continue to blog on this rule with the goal of providing stakeholders with good ideas for comments. While there is no guarantee that the DHS will incorporate all good and worthy ideas, it is important to continue to float such ideas as they can never really die, and have the potential to be included in other rules or even subsequently through legislation. The deadline for submitting comments to this proposed rule is February 29, 2016.

 

Cyrus Mehta

Including Early Adjustment Filing in Proposed DHS Rule Impacting High-Skilled Workers Would Give Big Boost to Delayed Green Card Applicants

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A proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” has disappointed beneficiaries of I-140 employment-based immigration visa petitions who are caught in the crushing employment-based preferences. Everyone was waiting with bated breath about how the rule would allow beneficiaries to apply for an employment authorization document (EAD) based on an approved I-140 petitions. The proposed rule was announced on New Year’s Eve, December 31, 2015,  but the balloon hastily deflated well before New Year. EADs would be issued in a very niggardly manner. This blog’s focus is not to explain every aspect of the proposed rule, and refers readers to Greg Siskind’s detailed summary, but suggests that the DHS also consider adding a rule to allow early filing of an I-485 adjustment application. Including a rule that would allow early filing of an I-485 application, along with some of the ameliorative provisions in the proposed rule, would truly make the rule positively impactful to those who are seeking relief.

Under the proposed rule, DHS will provide EADs to beneficiaries in the United States on E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status if they can demonstrate compelling circumstances. While compelling circumstances have not been defined in the rule, DHS has suggested that they include serious illness and disabilities, employer retaliation, other substantial harm to the applicant and significant disruption to the employer. Regarding what may constitute significant disruption; DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid. The EAD will be renewed if such compelling circumstances continue to be met, or if the beneficiary’s priority date is within one year of the official cut-off date.

As a result of these stringent standards, very few I-140 beneficiaries will be able to take advantage of this EAD provision. Furthermore, in order to keep the existing I-140 petition valid, the sponsoring employer must continue to offer the position to the beneficiary. While the recipient of an EAD can engage in open market employment, he or she must intend to work for the sponsoring employer upon the issuance of permanent residency. It is hoped that the final rule will provide a broader basis for beneficiaries of approved I-140 petitions to obtain EADs without needing to show compelling circumstances. INA 274A(h)(3) provides broad authorization to the DHS to issue work authorization to any non-citizen. While there is broad authority in the INA to issue an EAD, it is difficult to conceptualize how such a beneficiary may be able to port to another employer without a pending I-485 application. INA 204(j) requires an I-485 application to be pending for more than 180 days before a worker can change jobs in a same or similar occupational classification, while still keeping the I-140 petition and underlying labor certification intact.  On the other hand, a new employer can re-sponsor a worker if he or she has an EAD through a new I-140 petition, while retaining the priority date of the old petition, upon which the worker can consular process for the immigrant visa if not in a valid nonimmigrant status at the time the final action date becomes current.

Although the centerpiece proposal is disappointing, there are some bright spots. I-140 petitions that have been approved for at least 180 days would not be subject to automatic revocation due to a business closure or withdrawal by the employer. DHS has invoked its discretion under INA 205 to retain an I-140 even if an employer withdraws it or the business closes. This assurance would allow workers who have pending I-485 applications for 180 days or more to safely exercise job portability under INA 204(j), although this dispensation is not possible if USCIS revokes the I-140 based on a prior error. Even those without pending I-485 applications could take advantage of this provision to obtain H-1B extensions beyond six years under the American Competitiveness in the 21stCentury Act (AC 21). They would also be able to keep their priority dates if a new employer files another I-140 petition.

The proposed rule would also allow workers whose jobs are terminated a grace period of 60 days if they are holding E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN status. There will also be automatic extensions of an EAD for 180 days, but will take away the mandatory processing time for an EAD within 90 days.

Notwithstanding the stingy circumstances under which the DHS proposes to issue EADs to beneficiaries of approved I-140 petitions, the proposed rule could be salvaged, and truly resurrected, if workers can file early I-485 adjustment of status applications. While the proposed rule has not touched upon this, the DHS must revisit the innovation that was made in the October 2015 Visa Bulletin by creating a filing date and a final adjudication date. Although the filing dates got substantially pulled back in the EB-2 for India and China shortly before the new visa bulletin took effect on October 1, resulting in a lawsuit, DHS has a chance to redeem itself through this rule to truly benefit high skilled workers.

INA 245(a)(3) allows for the filing of an I-485 application for adjustment of status when the visa is “immediately available” to the applicant. The Department of State (DOS) has historically never advanced priority dates based on certitude that a visa would actually be available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin  a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the DOS was absolutely certain that applicants born in India and China who filed in April 2012  would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007.  Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Another example is when the DOS announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007)  . It was obvious that these applicants would not receive their green cards during that time frame. The DOS  then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007, also known as the class of 2007,  are still waiting today.

These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the DOS, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future. The Visa Bulletin in its new reincarnation, notwithstanding the pulling back of the filing dates prior to October 1, 2015,  now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. While it is acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever, DOS and DHS can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary.   So long as there is one visa kept available, the proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).

The author has proposed the following amendments to 8 C.F.R. § 245.1(g)(1) in the past with Gary Endelman (who has since become an Immigration Judge), shown here in bold, that would expand the definition of visa availability:

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 [if] 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) (“final action date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (‘filing date”) without reference to the final action date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current final adjudication date.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.

If early adjustment filing consistent with INA 245(a)(3) is included in the final rule, imagine how many more workers will benefit from it. Having an actual rule in place, as proposed, will prevent the shenanigans that obstructionists in the USCIS have engaged in by arbitrarily holding back the filing date, and in recent months, not even recognizing it for purposes of filing I-485 applications.   While an EAD of an approved I-140 will also be beneficial, being able to port off a pending adjustment application under INA 204(j) would allow the retention of the earlier I-140 petition (and underlying labor certification), without the need for an employer to file a new labor certification and I-140 petition. The filing of the I-485 application would also be able to protect a child from aging out under the Child Status Protection Act, which an EAD off an approved I-140 would not be able to do. Folks whose filing date would not be current could still take advantage of the EAD based on an approved I-140, but for those who can file an early I-485, they would incur many more benefits, including the ability to exercise true portability and eventually adjust to permanent residence in the United States.