Tag Archive for: Visa Availability

Cyrus Mehta

H-1B Extension Beyond Six Years Will Not Be Granted If Priority Date is Current and Green Card is Not Applied for Within One Year

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By Cyrus D. Mehta and Jessica Paszko*

The Immigration and Nationality Act (INA) § 214(g)(4) limits the amount of time that H-1B nonimmigrant workers may extend their H-1B status to six years. Under certain situations, however, H-1B status may be extended beyond the statutory six-year maximum, namely by way of a “Lengthy Adjudication Delay Exemption” or a “Per-Country Limitation Exemption”.

On January 17, 2017, regulations for high-skilled workers incorporating provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) were implemented. Under AC21 §106(a), H-1B status may be extended beyond the statutory six-year maximum for H-1B nonimmigrant workers if, inter alia, a labor certification or immigrant petition was filed 365 days prior to the end of the sixth year. Under AC21 §104(c), H-1B status may be extended for three years at a time if the individual is the beneficiary of an employment-based I-140 immigrant visa petition, and is eligible to adjust status but for backlogs, caused by per-country limitations, in the employment-based first (EB-1), second (EB-2), or third preference (EB-3) categories. Therefore, a petitioner seeking an H-1B extension on behalf of an H-1B beneficiary pursuant to §104(c) must establish that at the time of filing for such extension, the beneficiary is not eligible to be granted lawful permanent resident (LPR) status on account of the per country immigrant visa limitations. In other words, if at the time of filing Form I-129 to extend H-1B status, the beneficiary’s priority date is not current under the Department of State’s Immigrant Visa Bulletin, the USCIS is authorized to grant the H-1B extension request for three additional years. Beneficiaries born in India and China can generally avail of the exemption under §104(c).

Based on §106(a) of AC21, 8 CFR § 214.2(h)(13)(iii)(D) provides a Lengthy Adjudication Delay Exemption by allowing extensions of H-1B status beyond the statutory six-year maximum if at least 365 days have elapsed since the filing of a labor certification with the DOL or an immigrant visa petition with USCIS. § 214.2(h)(13)(iii)(D)(2) further adds that H-1B approvals may be granted in up to one-year increments until either the approved permanent labor certification expires or a final decision has been made to, inter alia, approve or deny the application for permanent labor certification, immigrant visa petition, or adjustment of status application. Based on §104(c) of AC21, 8 CFR § 214.2(h)(13)(iii)(D)(10) precludes a noncitizen from taking advantage of the aforementioned Lengthy Adjudication Delay Exemption if the noncitizen is the beneficiary of an approved I-140 and fails to file an adjustment of status application or apply for an immigrant visa within one year of an immigrant visa being authorized for issuance based on his or her preference category and country of chargeability. Notably, this section also provides that USCIS may excuse a failure to file in its discretion if the noncitizen establishes that the failure to apply was due to circumstances beyond his or her control. 8 CFR § 214.2(h)(13)(iii)(E) provides a Per-Country Limitation Exemption by allowing H-1B extensions beyond the statutory six-year maximum if the noncitizen is the beneficiary of an approved I-140 and is eligible to be granted that immigrant status but for application of the per country limitations. The petitioner must demonstrate such visa unavailability as of the date the H-1B petition is filed with USCIS. 8 CFR § 214.2(h)(13)(iii)(E)(1) authorizes USCIS to grant H-1B extensions of up to three years for as long as the noncitizen remains eligible for this exemption.

Even though the preamble to the rule is not binding, it at least suggests that for purposes of determining when an individual becomes eligible for the Lengthy Adjudication Delay Exemption, DHS will look to see if he or she failed to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa is authorized for issuance based on the applicable Final Action Date in the Visa Bulletin. In practice, it is advantageous for clients that visa availability be measured by the Final Action Date, instead of the Dates for Filing, as they are eligible to obtain three-year extensions, until their priority date becomes current under the Final Action Date. This is also consistent with the position that the USCIS has taken with respect to relying on the Final Action Date to freeze the age of the child under the Child Status Protection Act (see our blog criticizing use of the Final Action Date for CSPA purposes).

In other words, an H-1B nonimmigrant worker may hold H-1B status for more than six years if either 365 days have elapsed since an employer filed a labor certification or immigrant visa petition on his or her behalf.  Whether the H-1B worker may extend his or her status in one or three year increments depends on a different set of factors. H-1B status may be extended in one-year increments if a labor certification was filed 365 days prior to the end of the worker’s sixth year in H-1B status, and if the worker is the beneficiary of an approved I-140, he or she files an adjustment application or applies for an immigrant visa within one year of his or her priority date becoming current unless the failure to file timely was due to circumstances beyond the worker’s control. Meanwhile, H-1B status may be extended in three-year increments if the H-1B worker if the beneficiary of an approved I-140 and is eligible to be granted that immigrant status but for his or her priority date not being current. Thus, the key differentiating factor between the one and three year extensions is whether the H-1B worker’s I-140 priority date is current. If the H-1B worker’s priority date is current and he or she has filed an adjustment application within one year of the priority date becoming current, then he or she may only extend H-1B status in one-year increments. If the H-1B worker’s priority date is not yet current, then he or she may extend H-1B status in three-year increments provided the I-140 petition is approved.

Keep in mind that to qualify for a one-year extension, a labor certification must have been filed on the beneficiary’s behalf 365 days prior to the end of the H-1B worker’s sixth year, and to qualify for the three-year extension, the I-140, which could have been filed at any time, needs to be approved and the immigrant visa must be unavailable. But what happens when an H-1B worker’s priority date has become current and he or she has not filed an adjustment application or immigrant visa within one year? If an immigrant visa is available, then only the one year extension must be requested and proof must also be provided that the worker has applied for adjustment of status or immigrant visa within one year of the Final Action Date. If an employer mistakenly requests three years instead of one year in the H-1B extension request, USCIS will likely issue a Request for Evidence (RFE) questioning why a three year extension was requested and also whether an adjustment of status application has been filed if more than one year has elapsed since the visa became available.

Fortunately, under 8 CFR § 214.2(h)(13)(iii)(D)(10), USCIS may excuse failures to file timely upon a successful showing that the failure to apply was due to circumstances beyond the noncitizen’s control. Indeed, there are certain instances in which a noncitizen may not file an adjustment application or immigrant visa within one year of his or her priority date becoming current, for example, where the noncitizen switches employers. Under AC21 §§ 106(a) and 104(c), the worker is eligible for H-1B extensions even if a prior employer filed the labor certification or immigrant visa petition. Given that an adjustment of status application cannot be filed with the prior employer when there is no job offer, the current employer must start the PERM labor certification process anew and then file a new I-140 petition with the prior priority date recaptured. We believe that such facts present circumstances beyond the noncitizen’s control that warrant a waiver of the of the requirement that adjustment applications be filed within one year of the immigrant visa becoming available.

Skilled workers born in India who are caught in the EB-2 and EB-3 backlogs already face several obstacles while waiting for the green card. We have pointed out one more minefield that the worker needs to successfully overcome in remaining in the US in H-1B status while waiting for permanent residency.

 

*Jessica Paszko graduated with a J.D. from Brooklyn Law School in 2021 and is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Winter Blues: Freezing the Age of a Child Under the December 2015 Visa Bulletin

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Although the State Department Visa Bulletin announced dual dates on September 9, 2015 – a filing date and a final action date – effective October 1 2015, the government has yet to clarify how these dates protect a derivative child from aging out (turning 21) under the Child Status Protection Act. If a derivative child turns 21, the child cannot automatically obtain permanent residency status with the parent, and thus the CSPA freezes the age of a child below 21.

The new filing date in the Visa Bulletin allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States and the filing of visa applications if they are outside the country. The final action date will be the date when green cards can actually be issued.  The filing date thus allows for the early submission of adjustment applications prior to the date when green cards actually become available. Similarly for those who are outside the United States and processing for an immigrant visa overseas, the filing date should allow applicants to submit the DS 260 immigrant visa application.

Prior to the October 2015 Visa Bulletin, the cut-off date was based on the government’s ability to issue a green card during that month.  While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we advocate that the age of the child also be protected under the CSPA at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. [Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.]

Notwithstanding the abrupt retrogression of the filing dates on September 25, 2015 that were first announced on September 9, 2015, thus impeding the ability of thousands who were ready to file adjustment applications on October 1, 2015,  the dual date system still exists, albeit not as advantageously as before. The Visa Bulletin has been further undermined after the USCIS was given authority to determine filing dates for purposes of filing adjustment applications. One has to now also refer to http://www.uscis.gov/visabulletininfo to determine whether adjustment applicants can use the filing dates each month established by the State Department in the Visa Bulletin. For the first two months in 2015, October and November,  the USCIS indicated that the filing dates could be used, but for December 2015, the USCIS abruptly announced without explanation that only the final action date could be used for filing I-485 applications. This has caused further confusion regarding the applicability of the CSPA.

As background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. The Visa Bulletin in its new reincarnation 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. Thus, the government’s argument that it made a mistake when announcing the more advantageous filing dates on September 9, 2015 in the lawsuit, Mehta v. DOL, makes no sense.  Indeed, visa availability ought to be based on just one visa being saved in the backlogged preference category, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary.  The new way of interpreting visa availability makes it possible to file an adjustment of status application earlier than before, along with all the accompanying benefits that arise, such as job portability under INA 204(j), work authorization for the principal and derivative family members and travel permission. Similarly, CSPA protection should also be made available to children who may age out at the time of the earlier filing date so as to maximize the chance for children to obtain their green cards with the parent.

I strongly advocate that if there is now a broader interpretation of visa availability for purpose of filing an I-485 adjustment application at the filing date, this same filing date should lock in the CSPA age too. Otherwise the whole scheme collapses like a house of cards if there is no consistency. If there must be visa availability to file an I-485 under INA 245(a)(3) in order to enjoy 204(j) portability, it makes sense to use the same new interpretation of visa availability to lock in the child’s age at the filing date.  Imagine filing an I-485 for a minor at the time of the filing date who is not protected under the CSPA, and once s/he ages out, is no longer eligible to even be an adjustment applicant, and has to leave the US while the parents can continue as adjustment applicants.

There’s also no point in providing the earlier filing date in the new visa bulletin for immigrant visa applicants overseas, otherwise they get no tangible benefit, except to be able to lock in the child’s age earlier at the time of the filing date under the CSPA.

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed under the new interpretation of visa availability pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent.

Even though the filing date may not be available for submitting an adjustment application under December 1, 2015, according to the USCIS, this should not preclude an applicant from claiming the earlier filing date for purposes of freezing the age of the child below 21 years. In order to meet all the conditions of freezing the age under the CSPA, the child should have also sought to acquire lawful permanent residency within one year of visa availability, which is arguably the filing date. However, what if the USCIS does not allow usage of the filing date for I-485 applications for more than a year? Does this mean that the child’s age cannot be protected under the CSPA? One possibility is to seek permanent residency through consular processing, and file Form I-824, which enables consular processing of an approved I-130 or I-140 petition. The filing of Form I-824 would constitute evidence of seeking to acquire permanent residency within one year of visa availability, which is when the filing date became current. Even if the parent and child are unable to file an adjustment application, or even be able to obtain a green card imminently, filing the I-824 at least clearly fulfills the condition of seeking to acquire permanent residency within one year of visa availability.  Once the USCIS allows usage of the filing date, an adjustment application can subsequently be filed, and the filing of the I-824 application to initiate consular processing would constitute solid evidence of the applicant seeking permanent residency within one year of visa availability.

Until there is more clarity, it makes sense to take advantage of the earlier filing date to protect the age of the child, and then seek to acquire permanent residency within one year of the filing date becoming current. Of course, given that there is no harmony between the DOS and the USCIS with respect to availability of filing dates, it may be possible to also claim the final action date for purposes of protecting the age of the child, and then seeking to acquire permanent residency within one year of the final action date becoming current. I had suggested in my earlier blog that permanent residency should only be sought within one year of the filing date becoming current so that the concept of visa availability be applied consistently. However, given that the USCIS has not permitted the filing of I-485 applications in the month of December 2015, although the State Department has released a filing date, a child applicant should take advantage of either the filing date or the final action date for purposes of CSPA protection.

There has undoubtedly been much confusion caused by the new Visa Bulletin that took effect on October 1, 2015. While there is an ongoing legal fight to challenge the government’s abrupt reversal of the filing dates on September 25, 2015, we must also force the government to agree with the interpretation that the CSPA should lock in a child’s age based on the new filing date. In the months when the USCIS does not permit adjustment submissions based on the filing date, applicants should still be able to lock in the CSPA age based on the filing date in the Visa Bulletin, as well as based on the final action date, whichever is more advantageous. It is really surprising that the government has said nothing thus far, and hopefully, this blog should prompt a discussion.

Cyrus Mehta

It’s Deja Vu All Over Again: State Department Moves Filing Dates Back From Previously Released October Visa Bulletin

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On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The revised process allows foreign nationals to file adjustment of status applications in the United States or visa applications overseas once their filing dates are listed on a separate chart on the monthly Visa Bulletin, “Dates for Filing Applications.” In the prior version of the October Visa Bulletin, these dates were significantly earlier than the priority dates available for final adjudications that would result in green cards. The filing of an adjustment application affords significant benefits such as work authorization, travel permission, the ability to exercise job mobility as well as the ability to protect the age of a child under the Child Status Protection Act.

With the latest change for October, the Department of State moved the dates back substantially. In a statement announcing the change, U.S. Citizenship and Immigration Services explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted “to better reflect a timeframe justifying immediate action in the application process.” Potentially thousands of applicants who had already gathered documents, prepared applications, paid for medical examinations, and incurred other costs based on the previous dates may have to wait many months for their filing dates to be current enough so they can file, unless the situation changes. Advocates are vowing to pursue possible avenues to make that happen.

As a background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. Both versions of the October Visa Bulletin now view 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.

As proposed in a 2014 blog, visa availability ought to be based on just one visa being saved in the backlogged preference category, such as the India EB-3,  like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this  would be consistent with INA §245(a)(3).  Filing dates could potentially advance and become current. Therefore, there was no legal basis to retrogress the priority dates. Rather the government could have advanced them.

It is not clear what the government’s motivation was to move the dates backwards when there was no legal need to do so.   Was it that the USCIS could not have been able to cope with the increase in adjustment filings or was it something more sinister such as USCIS or DOS officials with anti-immigrant tendencies gaining the upper hand and deciding not to grant benefits so easily to those caught in the crushing backlogs?  Litigation options are potentially available. under the Administrative Procedure Act on the grounds that the government acted arbitrarily and capriciously. During the July 2007 visa bulletin fiasco, when the American Immigration Council’s Legal Action Center threatened litigation after it rescinded the bulletin that made EB dates current, the government backed down. Any litigation strategy must ensure that the dual date system remains intact as a court could well resolve the issue by voiding the filing dates and restoring only one priority date as before.

Below are a few examples of the extreme changes in the revised October Visa Bulletin:

 

  • EB2 China: Moved from 5/1/2014 to 1/1/2013 (1 year 5 months)
  • EB2 India: Moved from 7/1/2011 to 7/1/2009 (2 years)
  • EB3 Philippines: Moved from 1/1/2015 to 1/1/2010 (5 years)
  • FB1 Mexico: Moved from 7/1/1995 to 4/1/1995 (3 months)
  • FB3 Mexico: Moved from 10/1/1996 to 5/1/1995 (1 year 5 months)

The very least that the DOS and the USCIS should do is to allow a 30 day period for people who could have previously filed on October 1 to be able to do so. One saving grace is that even the revised October Visa Bulletin preserves the dual filing system, and thus there is flexibility in determining visa availability for purposes of establishing more advantageous filing dates in the future. In addition to litigation, consider pursuing other forms of advocacy. During the July 2007 visa bulletin fiasco, thousands of would be applicants sent roses Gandhi-style to the USCIS as a sign of peaceful protest. People should also sign this White House petition in order to get the requisite number of signatures so that it may be considered by the President. In the words attributed to Yogi Berra who died recently, “It’s Deja Vu All Over Again.” Of course, one will experience a more pleasant sense of deja vu if the government restores the earlier filing dates in the October 2015 visa bulletin like it did with the July 2007 visa bulletin.

Cyrus Mehta

Save the Children Under the New Visa Bulletin

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The changes  made to the priority date system in the October 2015 Visa Bulletin have been positive and will provide much relief to beneficiaries of visas petitions caught in the employment and family-based backlogs. There will be two dates for the very first time: a filing date and a final action date. The filing date will allow the filing of adjustment of status applications if eligible foreign nationals are in the United States and the filing of visa applications if they are outside the country. The final action date will be the date when green cards can actually be issued.

The October 2015 Visa Bulletin will thus allow the filing of applications prior to the date when green cards actually become available. Until now, the cut-off date was based on when visas were actually available.  While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we advocate that the age of the child also be protected under the Child Status Protection Act (CSPA) at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.

I celebrated the broadening of the interpretation of visa availability in my last blog,  Godot Has Arrived: Early Adjustment Of Status Applications Possible Under The October 15, 2015 Visa Bulletin,  and was also happy to note that these changes were consistent with what Gary Endelman (who is now an Immigration Judge) and I have propounded since 2010 in The Tyranny of Priority Dates. As a background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin 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. The new way of interpreting visa availability makes it possible to file an adjustment of status application earlier than before, along with all the accompanying benefits that arise, such as job portability under INA 204(j), work authorization for the principal and derivative family members and travel permission. Similarly, CSPA protection should also be made available to children who may age out at the time of the earlier filing date so as to maximize the chance for children to obtain their green cards with the parent.

Before the government finalizes all the details, I strongly advocate that if there is now a broader interpretation of visa availability for purpose of filing an I-485 adjustment application at the filing date, this same filing date should lock in the CSPA age too. Otherwise the whole scheme collapses like a house of cards if there is no consistency. If there must be visa availability to file an I-485 under INA 245(a)(3) in order to enjoy 204(j) portability, it makes sense to use the same new interpretation of visa availability to lock in the child’s age at the filing date.  Imagine filing an I-485 for a minor at the time of the filing date who is not protected under the CSPA, and once s/he ages out, is no longer eligible to even be an adjustment applicant, and has to leave the US while the parents can continue as adjustment applicants.

There’s also no point in providing the earlier filing date in the new visa bulletin for immigrant visa applicants overseas, otherwise they get no tangible benefit, except to be able to lock in the child’s age earlier at the time of the filing date under the CSPA. (There is potential for advocating that beneficiaries who have filed visa applications overseas under the earlier filing date be paroled into the US under INA 212(d)(5) while they wait for the final acceptance date to materialize, but I will reserve this for a future blog).

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed under the new interpretation of visa availability pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent.

Some of my esteemed colleagues have pointed out that one who does not seek to acquire permanent residency within the time of the filing date, but rather, seeks to acquire permanent residence within one year of the final action date may lose out under the CSPA. This may well be the case. However, it is far more advantageous for a child’s age to be locked in at the earlier filing date than the final action date. In order to be consistent and for this scheme to withstand potential legal challenges,  under the broader definition of visa availability which must be applied consistently, permanent residency should be sought within one year of the filing date rather than the final acceptance date.

Gary Endelman and I fine tuned our proposal in 2014 by advocating  that visa availability ought to be based on the just one visa being saved in the backlogged preference category, such as the India EB-3,  like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this  would be consistent with INA §245(a)(3). Similarly, this new visa availability ought to also protect the child from aging out under INA 203(h)(1)(A). Filing dates could potentially advance and become current.  Admittedly, it is not expected that the government will follow our “Thanksgiving turkey” proposal to the hilt, at least not yet, and it has been suggested by Greg Siskind on his Twitter feed that the filing dates will not move much in the first few months. The filing of early I-485 applications will give Charlie Oppenheim at DOS a better sense of how visa numbers will actually be utilized for the rest of the year.  “The goal of the changes is not to so much to allow people to file early as to have more accurate final action dates,” according to Siskind.

Regardless of whether the DOS and USCIS wish to advance the filing dates rapidly or not, it is important to protect a child from aging out at the time of the earlier filing date. Apart from ensuring that the parent and child immigrate together, this consistency will also make the new visa bulletin legally sound.  

Cyrus Mehta

SQUARING THE IMMIGRATION CIRCLE: NEW HOPE FOR AN OLD SYSTEM

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By Gary Endelman and Cyrus D. Mehta

The Immigration Innovation Act of 2015 (S. 153) (“I-Squared” Act) was introduced by  Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), Coons (D-DE), Flake (R-AZ), and Blumenthal (D-CT). When partisan rancor is the norm in Congress, the I-Squared Act is genuinely bipartisan, and endeavors to provide critical reforms needed in the area of high-skilled immigration. Soon employers will be scrambling again on April 1, 2015 to file their H-1B petitions in the hope that they will be selected in the cap lottery. H-1B numbers will get exhausted six months before the start of the new fiscal year on October 1, 2015. The I-Squared Act will raise H-1B numbers so as to avoid these unnecessary scrambles for the H-1B visa. What is unique is that the H-1B numbers will not be the subject of an arbitrary cap just picked from a hat, but will fluctuate based on actual market demand. The cap will not go above 195, 000, but not below 115,000.

Among the bill’s provisions are the following, although we refer readers to Greg Siskind’s detailed summary:

  • Increases the H-1B cap from 65,000 to 115,000 and allows the cap to go up (but not above 195,000) or down (but not below 115,000), depending on actual market demand.
  • Removes the existing 20,000 cap on the U.S. advanced degree exemption for H-1Bs.
  • Authorizes employment for dependent spouses of H-1B visa holders.
  • Recognizes that foreign students at U.S. colleges and universities have “dual intent” so they aren’t penalized for wanting to stay in the U.S. after graduation.
  • Recaptures green card numbers that were approved by Congress in previous years but were not used, and continues to do so going forward.
  • Exempts dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap.
  • Eliminates annual per-country limits for employment-based visa petitioners and adjusts per-country caps for family-based immigrant visas.
  • Establishes a grant program using funds from new fees added to H-1Bs and employment-based green cards to promote STEM education and worker retraining.

What we are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze. The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the nation well, we will likely not be able to do it anywhere else. The ongoing H-1B debate is really about the direction that the American economy will take in the digital age and whether we will surrender the high ground that America now occupies.

Until now, the ever-increasing fees and hyper-regulation imposed by Congress and the USCIS on H-1B employers have been justified by the simple but stubbornly held, if unstated, conviction that the hiring of foreign workers is contrary to the national interest and should be punished. Beyond that, the USCIS and DOL, not to mention the legacy INS, have always and continue to believe that the infliction of such punishment was the best, perhaps the only way, to shield US workers from such “illicit” activity. No government should have to apologize for trying to protect its own citizens. The true objection to what the USCIS and DOL have done is that their efforts, however well intentioned, have done precious little to help, but much to hurt, the very objects of their stated concern.

What is also remarkable about the I-Squared Act is that it raises the H-1B cap without undermining the H-1B visa program the way we know it. Unlike what S. 744 tried to do to muddy the H-1B visa, there are no provisions that would force employers to pay higher than market wages, or subject dependent employers to artificial and onerous recruitment requirements. The bill also incorporates ideas that have been floated in the context of bringing about administrative reform. Most notable is that I Squared exempts dependents from being counted in the employment-based preferences, which is something that we have advocated for several years. It is always preferable if Congress is able to bring about this change than to have the Administration find a justification for not counting family members under the current INA, and possibly even being sued for doing so. The bill also seeks to recapture unused visa numbers, and these have been estimated to be at least 200,000.

The bill would also allow for early adjustment filing by deeming an immigrant visa to be immediately available if the visa has not been used up during the fiscal year. This is precisely what we have also been advocating for facilitating early adjustment filings administratively. So long as there is even one visa that has gone unused, there should be a deeming of visa availability, thus allowing a foreign national to  be able to file an early adjustment of status application before the State Department’s Visa Bulletin announces them current. Of course, if Congress can bring about the innovation through the I Squared Act, so much the better. This redefinition of visa availability would also inject new and badly needed relevancy into the age-freezing formula of the Child Status Protection Act which, despite petition approval, does not operate where there are visa backlogs. Under the Child Status Protection Act, one needs an approved petition and a visa number to freeze the age of the child. If there is retrogression after such visa availability, the age remains frozen. However, if the visa availability is redefined, then the danger of aging out is removed. It will do little good to allow the parent(s) to apply for adjustment of status if their kids age out and have to leave. Interestingly enough, the I-Squared Bill will be the one and only definition of visa availability that Congress has ever authored.

The bill will also bring some respite to H-1B workers whose jobs get suddenly terminated. At present, there is no respite and an H-1B worker is in violation of his or her status upon termination. The bill will grant a 60 day grace period if the H-1B is terminated before the I-94 expires during which time a new employer can file a petition to extend or change status. This is the first step. We also urge that Congress passed a startup visa for entrepreneurs who wish to set up innovative businesses in the US. The H-1B visa is ill-suited for startups due to the need for the employer to establish control over the H-1B worker’s employment, which is difficult to demonstrate if the foreign national is the founder and owner of the entity.

The bill will also prohibit USCIS and DOS from denying subsequent petitions, visa or applications involving the same petitioner and beneficiary unless there was a material error relating to the approval of the prior petition, a material change in circumstances has occurred or new material has been discovered which adversely affects the eligibility of the employer or the worker. Although this bill has bipartisan support, it remains to be seen whether it will pass Congress. Republicans will want to introduce an amendment to abolish the Deferred Action for Parents Accountability (DAPA) program and Democrats may want to include provisions to make it more comprehensive such as legalizing undocumented persons. If both parties want to be able to demonstrate and can get something done, it would behoove them to pass this bill so as to avoid another H-1B cap quagmire looming ahead of us. Additionally, this bill will also help to further strengthen the American economy.

Section 102 of the I-Squared Bill would allow both H-4 and L-2 spouses to work, providing them with an “employment authorized endorsement of other appropriate work permit.” Does this mean a need to get an Employment Authorization Document? Who knows?  We welcome this development even though there is nothing in the INA right now that prevents an H-4 spouse from working. This prohibition is purely an act of regulation. While the USCIS has proposed to allow H-4 employment in select instances, the I-Squared version of H-4 employment authorization is a distinct improvement. I-Squared improves the USCIS proposed rule as it would allow H-4s to obtain EADs without preconditions. The proposed USCIS rule imposes preconditions where the principal must either have to have an approved I-140 or be filing for an H-1B extension beyond the 6th year under the American Competitiveness in the 21st Century Act. Both versions unnecessarily limit H-4 employment to spouses rather than extending it to teen age children.

Much as with the notion of a flexible H-1B cap, this reframing of visa availability is not so much an attempt to create a new immigration law as to bring new depth and definition to the existing INA, thus indicating yet again that the value of incremental change is to function as an improvement upon existing legislation. While I-Squared does not overly challenge the tyranny of priority dates, it does so indirectly by updating our understanding of visa availability and exempting  EB-1 extraordinary ability and  outstanding researchers from being subject to the crushing weight of the numerical employment based  caps, as well as advanced degree holders with STEM degrees .  The concept of family unit is advanced by not counting family members against the employment-based immigrant visa caps but it would be even better if family members were similarly exempt as a factor in the family-based quota limits.

While I-Squared does not explicitly link H-1B allotments to domestic economic conditions, it does so on a de facto basis by allowing the H-1B cap to rise or fall in connection with increases or decreases in H-1B sponsorship which themselves are a direct function of business profitability. While I-Squared does not make the H-1B truly portable, it does grant a temporary 60 day basis for the H-1B worker to find a new job without falling out of status. While I-Squared does not explicitly sanction consular reviewability, it makes it unnecessary for E, H, L, O or P visa holders to go to a consulate in the first place in order to renew their existing visas by restoring the pre-9/11 practice of visa revalidation. While I-Squared retains the INA 214(b) presumption of intending residence or immigrant intent, it exempts F-1 students from the obligation to maintain an unabandoned foreign residence abroad. Dual intent is not eliminated but students now come within the protection of its sheltering arms. The concept of the per country cap is partially retained but only on the family based side of the ledger. Let’s take the next step and extend this reductive methodology to FB quotas. The priority date system remains in place but the INA now will define visa availability so long as any visa number allocated to employment-based preference immigrants has not yet been issued for that fiscal year.  Beyond that, US advanced degree STEM holders are no longer counted against the overall EB limits. In sum, I-Squared is a classic example of legislative remediation that retains the frame of what was not working while infusing it with new meaning and greater adaptability to meet and answer the challenges of the 21st century.

This is pre-eminently a time for innovation. Try something, if that does not work, well then, try something else. True and lasting change is what America needs. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The USCIS and DOL care about American workers but do not effectively express such concern through policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. For those who think a new way is too complex, do we not have complexity now and towards what end? For those who shrink from the demands of change, or doubt what they can do to chart a new course, let them listen to the wise words of Robert Frost in his immortal poem The Road Not Taken that can, if we have the will and wisdom to hear it, still speak to us today: ” Two roads diverged in a wood, and I – I took the one less traveled by, And that has made all the difference.”

Cyrus Mehta

LET’S HOPE THAT’S WHAT IT MEANS: DOES EXECUTIVE INITIATIVE REALLY PROVIDE FOR EARLY ADJUSTMENT OF STATUS?

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By Gary Endelman and Cyrus D. Mehta

Most of the commentary and attention on the recent blizzard of White House and DHS memoranda on immigration reform quite properly fell on executive initiatives to bring the undocumented and their parents in from the shadows.  This is what the Administration clearly cares most about for logical political reasons. The White House perception, rightly or wrongly, is that the ever growing Hispanic constituency that the President wants to win over simply is not deeply concerned with having a more rational legal immigration system. Yet, there are a variety of positive steps that DHS Secretary Johnson outlined which do offer real benefits to workers and employers alike who know suffer from the sclerotic effects of chronic visa backlogs. The most promising innovation is the anticipated ability for the beneficiaries of approved I-140 petitions to apply for adjustment of status even in the absence of current priority dates. That, we all enthused, was something to rally round..  
Now that we have had a chance to exhale, a nagging doubt clouds this emerging optimism: Is early adjustment of status really what is contemplated?  While White House briefings and talking points certainly suggested this was the case, a stubborn yet deliberate reading of the various memoranda uncovers no explicit mention of early adjustment, only an intention to foster clarity, predictability, and transferability once the USCIS has approved an employment-based immigrant visa petition, Form I-140. DHS Secretary Johnson offers only the following:

“ I direct that USCIS carefully consider  other regulatory  or policy changes  to better assist and provide stability to the beneficiaries of approved employment-based immigrant  visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.”

Some doubting voices now raise up the possibility that the next step after I-140 approval will fall short of I-485 submission, perhaps only going so far as to allow for the granting of advance parole travel permission and issuance of employment authorization documents. We do not know if such doubts are justified but write now to explain why, if true, this is a very bad idea especially if it is offered without early I-485 submission as an alternative.
Let’s start with the reasons why allowing for early adjustment of status makes sense. We acknowledge that INA § 245(a) (3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).
The only regulation that defines visa availability is 8 C.F.R. § 245.1(g) (1), which provides: 
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). 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.
Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,  all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.
We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey, as we have proposed previously. 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, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
We propose the following amendments to 8 C.F.R. § 245.1(g)(1), 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) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority 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.
Allowing early adjustment of status with companion work authorization, travel permission, and AC 21-like adjustment portability  will make possible the green card on a provisional basis in all but name. However, this is not all. The most important benefit may be the freezing of children’s ages under the formula created by the Child Status Protection Act (CSPA). If the White House will only grant EAD and Parole to I-140 beneficiaries, but stop short of allowing adjustment, then, on a massive scale, their children will turn 21, thereby aging out, long before the magic time for I-485 submission ever arrives.  This is because Section 3 of the CSPA only speaks of freezing the child’s age when the petition has been approved and the visa number has become available. Also,  the child must seek to acquire lawful permanent resident status within one year following petition approval and visa availability. Since Matter of O.Vazquez, absent extraordinary circumstances, only the filing of the I-485 can do that. Under the current definition of visa availability, joined at the hip to the Visa Bulletin, they have no hope. Only through a modified definition coupled with the notion of provisional adjustment can they retain the CSPA age. This is why invocation of early adjustments themselves, not merely EAD and Parole, to beneficiaries of I-140 petitions is so manifestly necessary. However, precisely as in the INA, the CSPA contains no definition of visa availability. A change in the applicable regulatory meaning along the lines we suggest will apply to CSPA and prevent the children of I-140 beneficiaries from aging out.  Granting the EAD and advance parole will sadly have no such effect.  Only early adjustment can do that. This is especially relevant now since the Supreme Court in Scialabba v. Cuellar De Osorio substantially narrowed the utility of priority date retention. The redefinition of visa availability that we propose not only provides the legal underpinning for early adjustment of status but also allows the children of I-140 petition beneficiaries to derive a priceless immigration benefit through this family relationship that would otherwise be lost. Given the importance of preserving the age of a child under the CSPA, why only restrict early I-485 filings to beneficiaries of I-140 petitions? Our proposed redefinition of visa availability ought to also apply uniformly to beneficiaries of family based I-130 petitions too. 
It is entirely possible that the White House may realize all of this and more. We would be most happy to be rendered redundant. The best advice is that which is entirely unnecessary. Yet, unless and until we see it in writing, perhaps the time for celebration should be postponed.

(Guest author Gary Endelman is Senior Counsel at Foster)
Cyrus Mehta

DO WE REALLY HAVE TO WAIT FOR GODOT?: A LEGAL BASIS FOR EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

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While the Obama administration is working on unveiling administrative fixes to reform the immigration system, we wish to revive one idea, which we discussed in The Tyranny of Priority Dates.  
We propose that aliens caught in the crushing employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. It would promote efficiency, maximize transparency and enhance fundamental fairness by allowing someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140, Form I-130 or Form I-526. We have also learned that the EB-5 for China has reached the cap, and there will be retrogression in the EB-5 in the same way that there has been retrogression in the EB-2 and EB-3 for India. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose
Upon filing of an I-485 application, one can enjoy the benefits of “portability” under INA § 204(j) in some of the EB preferences and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization.

We acknowledge that INA § 245(a)(3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant, and this would need a Congressional fix. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).
The only regulation that defines visa availability is 8 C.F.R. § 245.1(g)(1), which provides:

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). 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.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,   all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department 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, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
We propose the following amendments to 8 C.F.R. § 245.1(g)(1), 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) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority 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.

Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), we propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. The authors suggest the insertion of the following sentence, shown here in bold and deletion of another sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Nevertheless, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.

We believe our proposal would not be creating new visa categories, but simply allowing those who are already on the pathway to permanent residence, but hindered by the crushing priority date backlogs, to apply for adjustment of status or be paroled into the U.S.  Another proposal is to allow the beneficiary of an approved I-140 to remain in the United States, and grant him or her an employment authorization document (EAD) if working in the same or similar occupation. While such a proposal allows one to avoid redefining visa availability in order to file an I-485 application, as we have suggested, we do not believe that a stand- alone I-140 petition can allow for portability under INA §204(j). Portability can only be exercised if there is an accompanying I-485 application. Still, at the same time, the government has authority to grant open market EADs to any category of aliens pursuant to INA §274A(h)(3). Under the broad authority that the government has to issue EADs pursuant to §274A(h)(3), the validity of the underlying labor certification would no longer be relevant.

Our colleague David Isaacson suggests a blunter approach, which would avoid any regulatory amendments. The Department of State could similarly allow filing of adjustment applications by applicants with priority dates for which no visa number was realistically available, at any time it chose to do so, simply by declaring the relevant categories “current” in the Visa Bulletin as it did for July 2007. The most efficient time to do this would be in September, at the end of each fiscal year, when the measure could also be justified as a way to ensure that any remaining visa numbers for that fiscal year did not go unused. The Visa Bulletin cut-off dates for the rest of the fiscal year could theoretically then proceed normally, with dates for each October following naturally from whatever the dates had been in the August two months before.
Finally, we also urge  serious consideration of our other proposal for not counting derivatives as a way to relieve the pressure in the EB and FB backlogs, and refer you to our blog entitled, Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress – Not Counting Family Members And Parole In Place, https://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html.
The fundamental point is that priority dates should be a way of controlling not preventing permanent migration to the United States.  The very notion of a priority date suggests a realistic possibility of acquiring lawful permanent resident status. That is no longer the case for many immigrants in waiting. For this reason, since Congress will not act, the President must step forward. Now is the time.