IndiaPost.com - Interplay between I-140 premium processing, ac21 and retrogression

In its latest Visa Bulletin for July 2008, the Department of State (DOS) has announced that the entire EB-3 category will become unavailable beginning July 1 and will remain so for the remainder of the fiscal year 2008, which ends on September 30.

The DOS further advises that "Such action will only be temporary. However, the EB-3 availability will return to the cut-off dates established for June in October, the first month of the new fiscal year." AILA has confirmed with USCIS that adjustment of status applications will continue to be accepted and receipted through the end of June.

Therefore, those who are unable to avail of either §104(a) or §106(c) of AC21, but have a labor certification approved, and their priority date is current under the June 2008 visa bulletin, should file an I-485 application on or before June 30, 2008. Indeed, even those eligible for H-1B AC21 extensions should file their I-485s by June 30.

By filing an I-485 application, an applicant can continue to remain lawfully in the US and also enjoy the incidental benefits such as employment authorization and travel permission, which is known as advance parole.

In an address on the "State of Immigration," the Secretary of the Department of Homeland Security, Michael Chertoff, announced that USCIS will begin issuing two-year employment authorization document (EAD) to individuals with a pending adjustment of status application. On June 12, 2008, USCIS issued a FAQ limiting the 2-year EAD to pending adjustment applicants who have filed for an EAD and who are currently unable to adjust status because an immigrant visa number is not currently available.

USCIS will continue to grant EADs that are valid for one-year for adjustment applicants who have an immigrant visa number available. Initially, EADs will only be valid for one year since they are submitted with an I-485 that can only be filed when there is an immigrant visa number immediately available.

Applicants are eligible for a 2-year EAD if their immigrant visa availability date retrogresses after the I-485 has been filed. USCIS will decide whether to renew an EAD for either a one- or two-year validity period based on the most recent DOS visa bulletin. Note that the 2-year EAD will never be available to immediate relatives who have filed an I-485 application, such as spouses and parents of US citizens, as there is always visa availability for such persons.

They will continue to receive the 1-year EAD. The application for the renewal must be filed more than 90 days in advance so as to ensure that the new EAD is issued before the expiration of the old EAD.

Any gap between the two EADs will result in the applicant not being authorized to work or continue working during that interval causing hardship to both the employer and the foreign national worker on the path to permanent residency.

USCIS has indicated in its latest FAQ that if an applicant has not received a decision within 90 days of the USCIS receipt date and he or she has properly filed the EAD application, the applicant may apply to obtain an interim EAD by appearing in person at the local USCIS district office by bringing proof of identity and any notices that he or she has received from USCIS in connection with the application for EAD.