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Greg Siskind on Immigration Law and Policy

FAQs (Part 4)

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Alert readers can often help me catch items needing fixin' so please let me know. By the way, I'm using some fancy new voice recognition software to dictate and it's making interesting errors as it gets better trained. So if you see anything weird that I didn't catch in my proofing, don't be shy about letting me know. Thanks!



What if my labor certification is approved after August 1st but before August 17th?



Again, there is no firm guidance here, but we hope such cases will be accepted as there is no statement that applications must have the necessary documents in the month of July. We will try and update this FAQ if we learn otherwise.



Visa numbers for EB-3 other workers retrogressed in the middle of June under a revised State Department Visa Bulletin for the month. Does this announcement affect those cases?



Unfortunately, it does not.



What if my case was filed before July and is still being processed? Will this development affect when I will get a green card?



The news here is actually not so bad and may actually be good.  Your case may have been one of the ones pulled for adjudication during USCIS' mad rush to use up the years remaining visa numbers.  If that is the case, you may be getting your approval very soon. If you are not in that group, you'll have to wait until visa numbers become available again in October.  However, generally speaking your case should be processed before the cases accepted under the July Visa bulletin and the expected time it will take for your case to be fully processed should hopefully not be extended.



USCIS is set to end bi-specialization at the end of July.  Bi-specialization requires applicants to submit adjustment petitions to the Nebraska Service Center and then half of those cases are selected and sent to the Texas Service Center.  Does the USCIS announcement has any impact on this scheduled change and processing?



We have not heard of any change regarding locations for filing this.  However, it is important to note that as of several weeks ago, direct filing was permitted and applications could be submitted rather to Nebraska or, in the case of applications outside of the Nebraska Service Center jurisdiction, to Texas.  We are recommending to clients that cases be filed directly with the service center having jurisdiction over their case rather than simply filing in Nebraska.



On June 27, 2007, USCIS announced that it was temporarily suspending premium processing for I-140 petitions filed during the month of July because they were concerned about their ability to meet the expected surge in applications.  The suspension announcement said that premium processing would resume on August 1st.  Will USCIS resume processing on August 1st?



USCIS has not made any announcement yet on the subject.  However, it seems pretty likely given the changed circumstances that the suspension of premium processing for I-140 petitions will continue until August 17. 



Am I barred from having a second adjustment application pending if I decide to file another case based on a different I-140 approval?



There is little definitive guidance from USCIS regarding submission of a second I-485 petition or substitution of a new I-140 in an existing adjustment case.  Theoretically, there is no bar to either practice though in the latter case a priority date needs to be available for the new I-140.  The service centers have been inconsistent in their treatment of both of these kinds of cases and he should proceed extremely cautiously before pursuing either.



Rather than waiting on the advance parole document can I travel on my nonimmigrant visa?



An adjustment of status application is normally considered abandoned when an applicant leaves the US without an advance parole document.  However, USCIS will permit an adjustment applicant to travel and reenter the US using one's H-1B or L-1 status.  This can be especially convenient since an advance parole document can take several months to secure and one must remain in the United States wall waiting the document.  Note that if you are in L-1 or H-1B status in the US but never had a visa stamp in your passport you will be required to get a visa stamp before being permitted to reenter the United States.



 



Note that 8 CFR 245.2(a)(4)(C) states the following:>



(C) The travel
outside of the United States by an applicant for adjustment of status who is
not under exclusion, deportation, or removal proceeding and who is in lawful
H-1 or L-1 status shall not be deemed an abandonment of the application if,
upon returning to this country, the alien remains eligible for H or L status,
is coming to resume employment with the same employer for whom he or she had
previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in
possession of a valid H or L visa (if required) and the original I-797 receipt
notice for the application for adjustment of status.





We are seeking clarification from USCIS if this is being
enforced since presumably receipts could take longer than usual to be issued.



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Comments

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  1. goodluck's Avatar
    party date needs to be corrected to priority date.
  2. Greg Siskind's Avatar
    Have to smile at that one. Guess I'm speaking in to the microphone with a southern accent :-)
  3. 's Avatar
    greg, i filed today and tx has jurisdiction over my area but i sent it to nebraska....will that cause a delay or will it be bad for my file?
  4. AA's Avatar
    Greg,

    Could you please answer this question?
    My wife is on H1B and we just applied for I485. We will apply for EAD and AP once we get the receipt. My wife is thinking to work till Nov and then go to India in Nov. I think she won't get EAD and AP by that time. She has not yet stamped her H1B. Can she just resign her job say on Nov 1st and go to India? Once I get EAD + AP here in USA, I can send it to her. Can she then come to US on AP without stamping her H1B on passport? Is this something possible?

    Thanks.
  5. CanITravel?'s Avatar

    Hi Greg,

    If my husband and I(primary applicant) apply for I-485 now and my husband wants to travel in August (he is on H1-B), we were told that he can't do so without the receipt notice from USCIS. Is this true? If so how long does the receipt notice take these days?

    Thanks!
  6. rajan's Avatar
    Question regarding travelling abroad without Advanced Parole if you are on H-4 visa.

    I am on H-1 and need to travel and suspect that USCIS may not process Advanced Parole by then. Per your note, I am ok. However, what about my spouse who is on H-4 visa - is she ok by travelling abroad and coming back on H-4.

    We dont want to abandon our gc application obviously. Please advise. Thanks.
  7. Greg Siskind's Avatar
    >>greg, i filed today and tx has jurisdiction over my area but i sent it to nebraska....will that cause a delay or will it be bad for my file?
  8. Greg Siskind's Avatar
    CanITravel - I believe I addressed this subject in the FAQ.
  9. HeadacheGC's Avatar
    Hello Greg,

    My current status:

    F1 (current, multiple entries until 01/2010, graduated on 05/30/2007, No OPT)
    => H1B (effective date 10/01/2007)
    => I485(filed on 07/18/2007 as a dependent of my spouse)

    I plan to go to Canada this month without AP and the receipt of I485, stay in Canada for two months, and come back with H1B visa stamping on 10/01/2007.

    Is it safe for keeping I485 ?

    Thanks in advance!
  10. Greg Siskind's Avatar
    rajan - H-4s are treated like H-1Bs as far as the rule about traveling while an adjustment application is pending.
  11. kanchi's Avatar
    Greg,Since lot of questions are related to processing times,do you know if USCIS has or will take any steps to athere to the Servie agrrements.Will they announce their plan/changes.Any idea on this Greg.Thanks for your time.
  12. FP&AP's Avatar
    Hi Greg,

    As you are talking about travel related issues in this FAQ, I think it would be good to discuss about the importance of being in the States for the finger printing appointment.

    Also, regarding the advance parole (for non H1/H4/L1 folks), does the following emergency AP procedure still hold good ?

    [Following is a copy paste from a website]

    AILA asked: What is the best method for obtaining emergency advance parole?

    USCIS answered: We have several methods of dealing with emergency advance parole. However, in each instance, we will be relying upon the district office to screen and make the determination as to whether there is a qualifying emergency. Each district office has been provided with redundant point of contact information for their personnel to be able to directly contact NBC. If the I-131 is actually pending at NBC (i.e., the individual has a fee receipt in hand), once the district office determines that an emergency exists, they are to contact their NBC point of contact. NBC will immediately pull and adjudicate the I-131. If necessary to meet a specific emergency, NBC can fax the I-131 to the district office and allow the district office to actually prepare and issue the advance parole. Where an emergency arises prior to receipt by NBC of the I-131, the district office may accept and process the I-131 in emergent situations.

    NBC/AILA Liaison Teleconference
    January 21, 2004
    [End Copy Paste]

    Thanks
  13. Greg Siskind's Avatar
    I think USCIS was trying desperately to figure out how to get out of working on these cases and now they have no idea how they're going to manage. I have not heard specifics yet on processing times. I imagine they're going to work the I-140s, EADs and travel documentsand shelve the I-485 parts of the cases until after the priority dates start to move along.
  14. ella's Avatar
    Hi Greg,
    First let me thank you for your blog and the time you spend here.
    Could you please tell me if the principle applicant and all dependents need to be in the US to file for EADs. I just learned that my lawyer only filed I-485 and we might be abroad when we get the 485 receipts.....Thanks in advance!
  15. Greg Siskind's Avatar
    Ella - Presence in the US is not required to file or receive an EAD.
  16. noreply's Avatar
    1. I sent my application today, what are the time frames for 485-receipt, EAD, AP
    2. If there is no response in 90 days, can I request an interim EAD card at local USCIS office?
    3. Do I need to pay for EAD/AP each year for renewal. I heard a rumor about it being free after paying for the first or the 2nd one.
    4. How long does it take to renew EAD/AP every year. How early before they expire, do we need to apply?
    5. Usage of which one (EAD or AP) will invalidate my H1-B?

    6.Does my H1-B voided if the spouse uses the EAD, when the spouse is the secondary applicant?
  17. Gondalguru's Avatar
    Hi Greg

    Filing two i-485 is really important for NIW EB2 physicians. I filed first I-485 with self petitioned I-140 and will need total of 5 years of service in an medically underserved area. I also have PERM based I-140 approved and i filed second I-485 petition this july 2nd.

    What are your thoughts on this kind of situation? Will there be any problem with this second I-485?

  18. Greg Siskind's Avatar
    Gondalguru - I have seen this situation many times for physicians. USCIS normally doesn't give us problems, but I'm always nervous because we don't have anything official okaying it and I always worry that an overzealous USCIS officer will give us grief.
  19. 's Avatar
    Hi Greg:

    If I get an EAD, do I have to keep renewing it every year? Or is it possible to skip a year while my H-1B is still valid?

    Thanks!
  20. Greg Siskind's Avatar
    >>If I get an EAD, do I have to keep renewing it every year? Or is it possible to skip a year while my H-1B is still valid?
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