In a surprising turn of events, the U.S. Department of State announced that, as of July 1, 2007, immigrant visa numbers will be available in all employment-based categories for all nationalities, including Indians and Chinese. Because the numbers will likely be used up quickly, we urge all of our clients to have their employees make every effort to gather the required documents to file applications in July.
What Does This Mean?
When visa numbers are available, it means that many of your employees will be permitted to file I-485 “adjustment of status” applications (popularly referred to as “green card” applications) as of July 1, 2007, as well as applications requesting the interim benefits of employment authorization and advance parole.
Who Will Be Eligible to File?
(a) Any employee who is the beneficiary of an approved I-140 immigrant visa petition in the first, second or third preference category will be able to file an application for adjustment of status as of July 1, 2007, as well as applications for interim benefits. Not only that: The spouse of your employee will also be able to file adjustment of status, employment authorization, and advance parole applications, and the minor children will be able to file adjustment of status and advance parole applications.
(b) Any employee who is the beneficiary of an approved application for alien labor certification will also be able to file the adjustment of status application, but in this case, the application must be filed concurrently with an I-140 immigrant visa petition. Of course, applications for employment authorization cards and advance parole may also be filed with the adjustment of status package, both for your employee and his or her family members.
(c) There are certain employees who qualify for permanent residence without having to go through the labor certification process. These include workers in the first preference classification: those of “extraordinary ability,” “outstanding researchers,” and “multinational managers and executives,” as well as those in the second preference category whose work is in the “national interest.” For these employees, an I-140 immigrant visa petition can be filed concurrently with an adjustment of status application.
Although situations may vary, generally speaking an application for adjustment of status must be submitted together with:
1. The applicant’s long-form birth certificate (and certified translation), listing each parent’s name;
2. Marriage certificate (and certified translation), if applicable;
3. Divorce decrees (and certified translation), if applicable;
4. A copy of the applicant’s most recent Federal income tax return;
5. The applicant’s paystubs from the past two months;
6. A full copy of the applicant’s passport;
7. The results of a medical exam, performed by a USCIS-authorized physician;
8. A letter from the employer confirming the terms of employment; and
This list is not meant to be exhaustive, and you should contact us to further discuss documentary requirements.
Does This Mean That the “Green Card” Application Will Soon Be Approved?
It would be logical, though not realistic, to assume that soon after filing the adjustment of status application, it would be approved and the “green card” would arrive in the mail. Unfortunately, this is not likely to happen. The USCIS is going to be inundated with adjustment of status applications in the month of July, adding to its backlog of cases already long pending at the Service Centers. By the time the USCIS gets around to adjudicating the July cases, the fiscal year will likely be over (the fiscal year ends on September 30, 2007), and a retrogression in numbers will probably recur, particularly for nationals of India and China.
What this means is, although the July adjustment of status cases will be filed and pending, they will not be approved until numbers are again current. Not only that. Once retrogression occurs, it will no longer be possible to file adjustment of status applications for oversubscribed categories. Therefore, in order to take advantage of this brief window of opportunity for filing, we urge all of our clients to make sure their employees submit their adjustment of status applications in July.
One further note: If visa numbers remain current for August, then filings of adjustment of status applications will be permitted during that month, as well. However, we’re not going to know the August visa situation until mid-July, when the State Department publishes its Visa Bulletin for August 2007. The safest route is to file cases in July. We urge you to contact us immediately to set the process in motion.