As reported in past newsletters, there are two primary factors that influence the time it takes to obtain permanent residence status based on employment. For those born in China and India, the per-country quota has resulted in a waiting list. For July 1999 the cutoff dates are as follows:
EB-1 Current (no backlog)
EB-2 September 1, 1997
EB-3 July 15, 1995 (four years!)
The July 1999 cutoff dates for those born in India will be as follows:
EB-1 Current (no backlog)
EB-2 October 1, 1998
EB-3 September 1, 1996 (almost three years)
An applicant's priority date -- the date the labor certification is filed -- must be earlier than the cut-off date when the application for adjustment of status (I-485) is filed and when it is approved.
The other primary factor is the government agency processing times. For most employment-based cases that involves three primary steps: 1) labor certification, 2) immigrant visa petition (I-140), and 3) application for adjustment of status (I-485). Those who apply in the EB-1 category and certain employees in the EB-2 category are exempt from the labor certification and therefore just have to wait for the last two steps.
The labor certification is handled by two government offices, the state job office in the state of employment and the regional office of the U.S. Department of Labor. The INS processes the I-140 and the I-485.
There is good news and bad news about these processing times. The good news is that the central office of the U.S. Department of Labor has ordered much speedier processing of the labor certifications, and the regional offices appear to be complying. Last year, reduction-in-recruitment (RIR) labor certifications were taking a year or more in many states. Now, we are receiving approvals in RIR labor certifications in just a few months. Cases that are processed through the Department of Labor offices in San Francisco, Seattle, Boston, Philadelphia, Kansas City, and New York are routinely approved in less than four months, and many are approved in less than two months. The offices in Dallas and Atlanta also appear to be processing the cases much faster. The exception is the office in Chicago, which often takes more than a year to process RIR cases.
On the other hand, the four regional INS "Service Centers" (in Vermont, California, Texas and Nebraska) have growing backlogs for processing I-140s and I-485s, and there is no relief in sight. Until about a year ago, the California Service Center usually processed the I-140s in less than three months. Now there is an eleven-month backlog, which appears to be getting worse as we see just a trickle of approvals of the I-140s we filed in August 1998.
The I-485s present a worse picture. Three years ago the INS consolidated I-485 processing from the local INS offices to the four regional "Service Centers" in order to create efficiencies and reduce total process times to less than 90 days. That never happened and the backlog has increased to a year and a half or more at three of the four "Service Centers" (the office in Vermont still managed to process the I-485s in less than a year).
A few months ago, the INS announced that it would stop processing I-485s altogether (with a few very limited exceptions, such as cases filed by applicants who have children who would soon be over 20 years of age and therefore lost their ability to immigrate). As of now, the INS has not resumed I-485 processing and apparently has no plans to do so. Even the fingerprinting required for the security checks has stopped. The only activity the INS is now taking is to accept the I-485 applications for filing, assign case numbers, and issue fee receipts. It is also continuing to issue employment authorization documents (EADs) and advanced parole (travel documents) within 90 days of filing. Right now the INS has a backlog of 900,000 applications, and it receives tens of thousands of new applications each month.
The reason for the backlogs and the suspension of I-485 processing can be summed up in one word: money. The INS does not have the resources to process all of the cases it receives. It has therefore diverted staff who were working on the I-485s to other cases it perceives as more pressing, such as pending naturalization cases (where there is also a backlog of two years) and H-1 cases. It does not appear that additional funding to address the problem will be available any time soon.
A possible solution to this impasse is to avoid the I-485 and instead process the application for permanent residence ("green card") status through the U.S. Embassy or Consulate in the applicant’s home country or another country where he or she has resided for at least three months ("consular processing"). Most U.S. Embassies and Consulates are able to process the application in less than a year.
However, there may be several drawbacks to this approach, including the following:
 | An applicant must choose between adjustment of status (I-485) and consular processing, and cannot do both. By choosing consular processing, the applicant gives up the right to obtain an employment authorization document (EAD) while the application is pending. For that reason, we do not recommend consular processing for those with less than 18 months left before their H-1 or L-1 visa finally expires. |
| The consular processing times could also increase. If the delay at the INS persists, tens of thousands of applicants could seek the alternative of consular processing, creating substantial backlogs at the U.S. Embassies and Consulates as well. |
| There could be substantial delays in transferring the approved I-140 from the INS to the embassy or consulate. For those whose I-140s have already been approved, an additional application (I-824) must be filed with the INS to request transfer of the file to the National Visa Center (or "NVC") in New Hampshire. In many cases, the INS can take up to nine months to process the I-824 and to send the I-140 to the NVC. The NVC can then take another three or four months to process the case and send it to the U.S. Embassy or Consulate. The NVC processing time could also increase if a significant number of applicants choose consular processing instead of the I-485. |
| An interview is required at the U.S. Embassy or Consulate and the applicant’s appearance is generally required for the entire day. In contrast, an interview in connection with an employment-based I-485 is rarely required. |
| The applicant must travel to the consulate on short (two or three week) notice, which often requires purchasing an airline ticket at the highest price. |
| The applicant must arrive at the city in which the U.S. Embassy or Consulate is located at least several days before the interview for a medical examination. The time required to be spent in that city (and away from work) may therefore be as much as a week or more. |
| Additional documents such as home country police clearances and military service records may be required. |
| If a problem arises at the interview (such as a missing document or an issue involving a prior application for a visa) the applicant may be stuck outside of the United States until the problem is resolved. |
| If the application is denied, there is little or no right to review or appeal. In contrast, if the I-485 is denied, the applicant has the right to renew the application in removal proceedings, and has several options for review and appeal. Generally the applicant may remain in the United States with employment authorization while those proceedings are pending. |
It is possible to start with consular processing, and later file an application for adjustment of status (and abandon the consular processing). For example, a person who has a year and a half left in H-1B status may commence consular processing, but find after a year that it is unlikely that the case will be completed in time. By filing an application for adjustment of status (I-485) the applicant can legally remain in the United States after the H-1B status finally expires and can obtain the employment authorization document (EAD). However, the INS will have to retrieve the approved I-140 from the U.S. Embassy or Consulate abroad, a process that could involve substantial additional delay.
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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.
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