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Practice Note
 
Last Minute Tips to Help With Retrogression Cases

On September 29, 2005 the American Immigration Lawyers* Association (AILA) released the last minute tips to help with attorneys and people dealing with the retrogression situation.  Indeed the tips were released in the "last minute" and help may no longer be applicable to many people by now.  However, as the information therein is very informative and may be used by readers who may face same problem in the future, we decide to release it in this website for our readers for your information.

As our readers may have known, the October 2005 State Department Visa Bulletin indicates that permanent resident visas will be limited in many employment-based categories effective October 1, 2005, especially for people from India and China. For applicants who fall into those categories, I-485 applications to adjust status must be filed by September 30, 2005, or individuals will have to wait until the "priority date" is again reached. For those with I-485 applications pending with the USCIS or who have visa applications in process at consulates, permanent resident visas must be issued by September 30, 2005, otherwise, the individuals will have to wait for the "priority date" to be reached for visa issuance. With this in mind, and with particular focus on I-485 filings, these last minute tips are offered:

1. MAKE SURE YOUR FILINGS ARE COMPLETE -- USCIS has indicated that they will be looking closely at last-minute filings in cases for countries with cut-off dates to make sure that the initial evidence requirements for I-140 petitions and I-485 applications are met. USCIS is concerned that there will be less than thorough submissions in order to secure EADs and Advance Paroles. Filings that do not satisfy the "initial evidence" requirements are likely to be rejected, not subject to an RFE.

2. EXCEPTION FOR PROOF OF GRANT OF LABOR CERTIFICATION: USCIS has just announced that they will accept Department of Labor (DOL) printouts establishing the issuance of a labor certification (either a form ETA-750 or a Form 9089) along with EB-2 I-140 employment based immigrant petitions. USCIS will continue to accept the printout through September 30, 2005. To preserve the filing, you must submit an original approved labor certification by October 31, 2005. Petitioners updating cases should reference the I-140 petition receipt number in correspondence when submitting the original approved labor certification.

3. DON'T FORGET ALTERNATE CHARGEABILITY - There are ways to have a visa applicant charged to a different foreign state than that which is the country of birth. One way is where the principal alien is a native of a country for which a cut-off date is applicable, and where the principal's spouse is a native of a country that is not subject to a cut-off date. Both the principal and derivative may be charged to the derivative's country of birth to prevent separation of the family. See 9 FAM 42.12 N2 and N3.

4. KEEP AN EYE ON SHIFTING BORDERS -- If an alien's place of birth has undergone changes in political jurisdiction since the time of his or her birth, the alien is subject to the foreign state limitation of the state which has jurisdiction over that place of birth at the time of visa application. See 9 FAM 42.12 N2.2.

5. SEE IF YOU CAN MOVE UP OR DOWN THE PREFERENCE LADDER - USCIS regulations at 8 CFR ∫ 204.5(e) permits retention of section 203(b)(1), (2), or (3) priority date -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date

6. CHILDREN REACHING 21 YEARS OF AGE ARE NOT PROTECTED - The Child Status Protection Act of 2002 (Pub. L. 107-208) amended INA Section 203 to add INA ∫ 203(h), creating a system which allowed the unmarried minor children to be granted derivative permanent residence notwithstanding reaching 21, if the age of the child on the date upon which a visa number becomes available, minus the number of days it took USCIS to adjudicate the principal's petition, results in the calculated age to be under 21. Protection was extended to the affected child if the child applied for permanent residence within a year of becoming eligible. Under retrogression, however, unless USCIS took an extraordinary amount of time to adjudicate a petition, and a visa number was immediately available, the child "ages-out."

 

7. THOSE IN H-1B STATUS (AND QUALIFYING H-4 DEPENDENTS) WILL BE ELIGIBLE FOR THREE-YEAR EXTENSIONS - Section 104(c) of AC21 provides that an alien beneficiary of an approved I-140 who is prevented from filing an adjustment of status application due to application of worldwide or per-country limitations may be granted an extension of H-1B status in three-year increments pending eligibility to apply for adjustment of status to for a permanent resident visa at a US consulate abroad. There is no requirement that the alien have a labor certification or visa petition pending for one full year prior to the expiration of the alien's sixth year of H-1B status, but, there must be an approved I-140 to access this benefit. Unfortunately, this protection will not apply to the children of such an alien when the children reach 21.

8. THOSE WHO HAVE ADJUSTMENT APPLICATIONS FILED WHEN A CUT-OFF DATE IS ANNOUNCED WILL CONTINUE TO BE ENTITLED TO EADs AND ADVANCE PAROLES - The USCIS reaffirmed in a December 29, 2004, memorandum that applicants for adjustment of status who are affected by priority date retrogression will remain eligible for Employment Authorization Documents and I-512 Advance Parole documents. See "Regression of E31 and E32 Visa Numbers for Applicants from Mainland China, India, and the Philippines", HQOPRD 70/11.1, December 29, 2004 (Posted on AILA InfoNet at Doc. No. 04122862 (Dec. 28, 2004)).

 

 


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