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Greg Siskind on Immigration Law and Policy

FAQs (Part 5)

Rating: 6 votes, 5.00 average.

It's very late so please help me catch any errors :-)



I filed an I-140 petition and still am waiting on a receipt. How do I file my adjustment of status petition if I don't have my receipt?



Unfortunately, there is not an easy solution. You will most likely get denied if you don't have an I-140 receipt. Given the longer deadline to file, it will often make sense to wait longer to see if you get the receipt. We also think USCIS may make concessions for people unable to file because of a lack of a receipt, but there is no firm news to report on this yet.



I understand that USCIS is not requiring applicants to pay the new higher fee after July 30th after all. But what if I WANT to pay the higher fee?



Some people would actually prefer the higher fee since under the new system, the initial fee includes the employment card and travel document. It appears that there may not be fees for renewals of EADs and advance parole documents, potentially a source of much savings. . This is a question yet to be resolved by USCIS both concerning whether there will be fees for renewals of EADs and parole documents as well as whether one has a choice in paying the old fee or the new fee. Furthermore, the USCIS announcement doesn't make it clear whether the old fee will continue for I-485s packages only or cases where people are only filing an I-140 and also whether the higher fee would apply to people filing I-140s between August 1st and August 16th who are not going to get July priority dates..



Under AC21, if green card numbers are unavailable, one can apply for an H-1B for a one-time three year extension? When are numbers no longer considered available? In other words, can I apply for the three year extension beginning on August 1st or do I have to wait until August 17th? 



Again, there is nothing official yet from USCIS advising on this and we hope to get advice soon.



I have heard that if my priority date is not established until after July 31st, I am not eligible to adjust under the July Visa Bulletin even if I file before August 16th.



This is one of the more confusing aspects of the USCIS announcement.  On its face, it would seem that anyone can file an employment-based adjustment application up until August 16th.   However, a closer analysis it may very well be the case that only people with priority dates established earlier than August 1st can file adjustments between August 1st and August 16th .  For example, one who wishes to file EB-1 might be ineligible to file later than July 31st because the priority date would not be established prior to August. On the other hand, someone whose labor certification is approved after August 1st might still be eligible because the priority date would have been earlier than August.



If this interpretation is in fact correct, this would also cause problems for nurses.  Nurses seeking green cards to work for unionized employers might have a problem given built-in time frames for proceeding after getting a union consultation.  And all nurses would have to have cases filed before the month of August since priority dates are not established for nurses until the day of filing the I-140.



We expect further guidance from USCIS on this confusing subject. 

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Comments

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  1. Jun's Avatar
    I hope we can hear from USCIS soon regarding the filing of I-140 concurrent with I-485 for Schedule A occupations.

    More power to you, Greg!
  2. Sam's Avatar
    I DO NOT AGREE WITH GREG, REGARDING I 485 FILING WITHOUT I 140 RECEIPT. MY FRIEND FILED I 140 IN JUNE AND STILL HE DID NOT RECIEVE A RECEIPT. NSC TURNADROUND TIME IS 15 DAYS AND IF THEY CANNOT GENERATE THE RECEIPTS, ITS THEIR PROBPEM.

    I 100% BELIEVE THAT PEOPLE CAN FILE THEIR I 485'S IF IT IS MORE THAN 15 DAYS THAT THEY FILED THEIR I 140.

    http://www.immigration.com/fromtheagency/nsc112006.html
  3. Sam's Avatar
    PLEASE MAKE SURE WHAT YOU ANSWER. YOUR ANSWER TO QUESTION 5 IS WRONG. I JUST DONT WANT TO BE HARD BUT ITS ALSO NOT USEFULL TO RAISE HOPES OF OTHER PEOPLE.

    AUGUST 16TH DEADLINE IS ONLY FOR PEOPLE WHO ARE CURRENT ACCORDING TO JULY BULLETIN. SO PEOPLE WHOSE PRIORITY DATES BECOME CURRENT IN AUGUST CANNOT FILE THEIR I 485'S AS THE AUGUST BULLETIN SAYS "UNAVAIALBLE". USCIS UPDATE WAS VERY CLEAR ON THIS.
  4. 's Avatar
    Greg,

    I much appreciated your efforts in putting together FAQs. But I'd agree with Sam's comments on the question 5 for sure. People who got PERM certified after Aug. 1st would fall in Aug. Visa Bulletin.
  5. A.C.'s Avatar
    Hi Greg
    Thanks for all of your time.
    I have some questions:
    1) I know you said PP I-140 would probably not be restated for August, but is there a possibility USCIS would get rid of it for good?
    2) Do you think EB-2 not India or China (i.e. Rest of World) would become current again come October?

    THANKS!
  6. Jun's Avatar
    Sam et al,

    Although it is clear that the answer for Question 5 is that the priority date must be July in order to do AOS in August, lawyers are still seeking clarification from USCIS because it's not a matter of technicality but of fairness. Nurses, for example, which are on DOL Schedule A, are often filing their I-140 and I-485 together. The July VB mess brought undue advantage to them because it resulted to most nurses holding the filing of their I-140 petitions until all is clear. And then now, with just 2 weeks available for nurses, it is just prudent for USCIS to consider their cases and allow Schedule A applicants to retain JULY PD even if they applied I-140/I-485 in August.
  7. AV's Avatar
    I dont think that what you have put in your FAQ is correct about getting denied if there is no I-140 receipt.

    Concurrent filing of I140 and I485 has been allowed for quite some time now.

    http://www.pengweber.com/greencards/adjustment/ConcurrentFiling.html
    http://www.klaskolaw.com/faqs.php?action=view&id=4
  8. MG's Avatar
    I had a quick question. We filed our I-485's with cashiers checks and not personal checks. Now, is there an alternative way to check when it was received. Is re-filing unnecessary?
  9. Sam's Avatar
    HI JUN,

    I AGREE TO WHAT YOU SAID AND I SUPPORT ALL THE EFFORTS OF THE IMMIGRATION PEOPLE. EVERYONE SHOULD BE BENEFITTED.

    BUT FOR NOW, ITS NOT POSSIBLE AND I BELIEVE AN IMMIGRATION ATTORNEY SHOULD NOT MISLEAD THE PEOPLE WITH WORNG INFORMATION AND WRONG HOPES. GREG SAID THAT THE USCIS UPDATE IS CONFUSING. NO, IT IS NOT CONSUSING. IT IS AS PLAIN AS A WHITE PAGE.
  10. Jun's Avatar
    I agree also with you. The safest way to do it is to file I-140/485 on or before July 31. If this is not possible due to I-485 filing reasons, atleast file I-140 first in July and then, do AOS in August.

    Applicants don't want to see themselves facing an immigration judge just because of simple mistakes in the interpretation. Filing I-140/485 in August is just too risky unless USCIS issue guidance. For now, without guidance from USICS, the best way is file both in July.
  11. Second A.C.'s Avatar
    I second A.C.'s questions:
    1) I know you said PP I-140 would probably not be reinstated until August 17, but is there a possibility USCIS would get rid of it for good?
    2) Do you think EB-2 Rest of the World would become current again come October?
    Thanks!
  12. Mith's Avatar
    Sam,
    Can you give an example for people who do not have priority date current as per August bulletin?

    As per July bulletin it's current, that means, if I have approved labor I can file...

    Do you meant someone file their labor on first of August and get approved before August 17th and those people can not file?
  13. third a.c.'s Avatar
    i third a.c.'s questions....thank you so much greg.
  14. a.r.m's Avatar
    hi greg! i need enlightenment on my case, pls.. my I-485 was sent june 29 & rec. by uscis on july 2. but it was sent without the I-163 (medical). as you have said, there's a possibility that my appl will be rejected bec. my I-163 was not included. now that i had all my medical done and my 163 ready to be filed by monday, july 23, do you think uscis will accept it as an additional doc to my already filed I-485? how will i send it do i need to put a note that it's part of my july 2 I-485 application?

    i hope you can answer this asap bec i need to decide by mon. whether to send my 163 or wait for my 485 receipt first.

    thanks and more power!
  15. Illinois_Alum's Avatar
    Referring to Mith..."Sam,
    Can you give an example for people who do not have priority date current as per August bulletin?

    As per July bulletin it's current, that means, if I have approved labor I can file...

    Do you meant someone file their labor on first of August and get approved before August 17th and those people can not file?"

    Another example is anyone who had initiated LC application before July 1st but who only gets LC approved between Aug 1st & Aug 16th. In July, he wouldnt have been eligible to file for I-140 & I-485 cause his LC wasn't approved yet!
  16. Greg Siskind's Avatar
    Sam - That is a good tip, though it's obviously smart to file with the receipt if possible (if only to ensure that the I-140 actually has not been lost). But I think following the NSC guidance is helpful if you're in a bind and don't have a choice in the matter.
  17. Greg Siskind's Avatar
    I think folks need to be reminded that a priority date in a PERM case is established on the date the PERM application is submitted, not on the day it is certified.
  18. Greg Siskind's Avatar
    AV - I don't think you're understanding the point of the question in the FAQ. The issue is the establishment of the priority date before July 31st, not whether you can concurrently file. If the case is based on an approved labor cert, there should be no problem. It's the case where no labor cert is required and the I-140 - whether concurrently or separately filed - does not get to USCIS until August.
  19. Pat72's Avatar
    Greg,
    As per your below FAQ
    "Under AC21, if green card numbers are unavailable, one can apply for an H-1B for a one-time three year extension? When are numbers no longer considered available? In other words, can I apply for the three year extension beginning on August 1st or do I have to wait until August 17th? "

    actaully you can file for 3 year extension any time, but the question is wheather you will get 3 year or 1 year is depending upon time/date when your H1 gets approved.

    so for eg if you file for 3 year extension now, but say if USCIS takes 5 month to adjudication your case, than they will check wheather visa is available or not for your case on the date of adjudication.
  20. Jon's Avatar
    My H1 visa stamped on my passport already expired but I have a valid H1 (I-797) until next year. If my I-797 expires and assuming I have a work permit (EAD), will my work permit automatically kick in? How will the immigration know that I am using my EAD?

    Thank you.
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