Recently, the U.S. State Department announced that the cutoff date for all professional employment categories (EB-1, EB-2 and EB-3) will be current for August 1999 for all countries, including China and India.1 That means that every professional worker who has an approved immigrant visa petition (I-140) will be eligible to submit an application for adjustment of status (I-485), regardless of country of birth.
On July 19, 1999, the State Department official who controls the cutoff date2 answered the following two important questions about this elimination of the quota backlog:
Why is there a sudden jump in the cutoff dates after they have been continuously backlogged (four years in the case of EB-3 China) for the past several years?
Will the cutoff dates retrogress in the future, and if so how long will they remain current?
The reason for the sudden jump in the cutoff dates because of INS delay in approving adjustment of status applications (I-485s) (discussed in our May/June 1999 Newsletter). Each time an employment-based I-485 is approved, the per-year, per-country quota is charged. Since the INS has not been approving many I-485s recently, the quota recently has not been charged at the rate it has in the past.
As a result, there are still about 3,000 visa numbers available for China and 3,000 available for India, even though we are nearing the end of the fiscal year (October 1 to September 30). Mr. Oppenheim believes it is not appropriate to have cutoff dates in categories for which no demand was being made, and also recognizes that current cutoff dates provide an opportunity for continued employment authorization for those who are reaching the 6-year limit in H-1B status.
However, the actual demand for the green cards has not decreased, and most likely is increasing. The actual number of pending cases remains backlogged several years in the EB-2 and EB-3 categories for those born in China and India. Unless a new law is passed in Congress, the process of obtaining permanent residence status will continue to take several years. We should not be surprised if the cutoff dates retrogress to where they were six months or even a year ago.
Mr. Oppenheim also answered the second question, how long it will be before the quota retrogresses. He opined that the cutoff dates could remain current for several months. Also, given his rationale for bringing the dates current in the first place, it may be even longer before the dates retrogress if the INS continues its freeze on the approval of adjustment of status applications (I-485s).
Nevertheless, this could turn out to be a short window of opportunity, so we recommend that those with more recent priority dates file their I-485s as soon as possible.
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On June 1, 1999, the INS issued an interim regulation that provides that L-1 and H-1B visas (and dependent L-2 and H-4 visas) remain valid even after the visa holder files an application for adjustment of status (I-485). Previously, the applicant could return to the United States only using "advanced parole", a travel document issued by the INS in connection with the I-485. Also, after returning with the "advanced parole", the applicant was authorized to work only if he or she had an Employment Authorization Document (EAD), which is issued routinely by the INS in connection with the I-485.
Now, the L-1 or H-1B visa may be used to reenter the U.S., and also provides continuing authorization to work for the L-1 or H-1B sponsoring employer. However, if the applicant fails to maintain L-1 or H-1B status (for example, by working for an employer that is not an L-1 or H-1B sponsor of the applicant), then the visa can no longer be used to reenter the U.S.
The regulation requires that a person with a pending I-485 who enters the U.S. using an L-1 or H-1B visa must present the I-485 filing receipt (on form I-797) at the time of entry.
As long as the L-1 or H-1B visa remains valid, the holder of the visa can confer L-2 or H-4 status on a spouse, even after the I-485 has been filed. That also would appear to be the case even if the marriage takes place after the I-485 is filed.3 Those who have plans to marry but wish to take advantage of the current cutoff dates (discussed above) can now do so. They can file their I-485 now, and later marry and bring their spouses to the U.S. in L-2 or H-4 status. Once in the United States, the spouse can then submit his or her own I-485 as an accompanying dependent.
This strategy has its risks: if the INS approves the I-485 before the marriage takes place, the spouse will not be able immigrate as an accompanying dependent in the employment category, but would have to wait several (perhaps five) years to immigrate in a family category. Also, the quota must be current for the spouse to file an I-485. If the employment-based categories retrogress, the spouse must wait until the quota again becomes current before filing. In the meantime the time limit for the L or H status could expire, and the spouse would be left with no status in the United States and no visa that would enable him or her to return after a trip abroad. Those who plan to marry after filing the I-485 should therefore do so as soon as possible, and the spouse should come to the U.S. and file the I-485 at the earliest opportunity.
In many cases advanced parole and EADs are no longer necessary if the I-485 applicant has a valid L-1 or H-1B (or L-2 or H-4) status. However, it may be prudent to obtain the advanced parole and EAD, which are valid for one year, even if one has L-1 or H-1B status that is valid for more than one year. Circumstances that would make it beneficial to have the advanced parole and EAD could include the following:
Unforeseen circumstances could require employment with an employer other than the L-1 or H-1B sponsor. For example, the employee may want to teach a night school class, or otherwise seek temporary or part-time employment with another employer. Even if the employee works only for the same employer the L-1 status or H-1B status could end. For example, L-1 status would come to an end if the sponsoring employer shuts down all of its overseas offices.
If the place of employment or the nature of the job changes temporarily, the EAD would permit continued employment without filing a new LCA (Labor Condition Application) or amended H-1B petition.
Although not likely, the INS could again change its policy.
The applicant may wish to travel abroad without the delay and expense of extending and revalidating an expired L-1 or H-1B visa.
The converse may also be true: it may be prudent to continue to extend the L-1 or H-1B status even if an applicant has a valid EAD card and advanced parole. Maintaining L-1 or H-1B status would ensure that the applicant would not have to suspend employment and go off the payroll because processing of an EAD card is delayed by the INS or the application to extend the EAD card is not filed soon enough.
It may also be more convenient to travel internationally using the L-1 or H-1B visa rather than the advanced parole. Our clients who use the advanced parole tell us that after standing in the normal line for immigration inspections, they must then wait up to another hour in a second line for the immigration officer who handles more complicated cases. The entire inspections process can then take more than an hour, a significant burden on those who just finished a thirteen-hour flight. While they are undergoing this more lengthy inspection their baggage is left unattended.
Finally, an I-485 applicant may wish to end the portion of L-1 or H-1B status in order to preserve the remaining allowed 6 years in H-1B status. By so doing, the applicant can preserve the option of returning to H-1B status in the future in the event there is a problem with the I-485 or the underlying employment terminates.
The expense of obtaining the L-1 or H-1B extension must be balanced against whatever measure of additional insurance it provides for avoiding 1) a period of unemployment, and 2) an additional line at the airport.
1 See our May/June 1999 Newsletter for an explanation of the cutoff dates and quota backlogs.
2 Charles Oppenheim, Chief of the Immigrant Visa Control and Reporting Division at the Visa Office.
3 Previously, an applicant with a pending I-485 who married a person in his or her home country would not be able to obtain an L-2 or H-4 visa for the new spouse without first withdrawing the I-485.
* The purpose of this newsletter is to inform potential clients of the type of legal issues our firm handles. It is not intended to establish any attorney/client relationship, and we accept no responsibility for the accuracy of the information provided. We cannot discuss or clarify any of the information contained in our newsletters, except with our existing clients.
Copyright © 1999 BACH AND SMALL