Adjustment Of Status Backlog

In our May/June 1999 Newsletter we reported on a substantial INS backlog of applications for adjustment of status (I-485), the final stage in the employment-based green card process. At that time, the INS had stopped approving I-485’s while the backlog continued to grow.

Now, a half year later, the situation has become even worse. Despite announcements in the Fall of 1999 that it would begin to work on the backlog, the INS has not yet resumed its processing of I-485’s. There are a few exceptions, and we have seen approvals in "aging out" cases, where the INS will expedite the case of an applicant with a child who is twenty years old (because the child would lose the ability to immigrate as a dependent after his or her twenty-first birthday).

In August 1999 the India and China cutoff dates became current for the employment-based immigration categories, permitting hundreds of thousands of applicants to file I-485’s (see our July/August 1999 Newsletter). There are some estimates of the backlog of I-485’s nationwide reaching 1.5 million, compared to 150,000 in 1995 when the processing time was about one year. That does not mean that it will take ten years for the INS to process an I-485 that is filed now. But it does mean that the INS will have to devote personnel and other resources to the problem, and it may be a long time before it does.

Employment-Based Immigrant Visa Petition Backlog

There is also a continuing backlog of employment-based immigrant visa petition (I-140’s). Eighteen months ago the INS routinely processed the I-140’s in less than a month. In contrast, today many I-140’s have been pending for more than a year.

In March 1999, the national office of the INS announced a goal to reduce the I-140 processing time to sixty days. Like many of the INS promises, this one has not yet been fulfilled. However, there has been some progress in this area, and after several months of no I-140 approvals at all, we are now beginning to see some movement. Of the four INS Service Centers, only the Texas Service Center has reduced its I-140 processing time to sixty days. The Vermont Service Center still has a backlog of about six months; the California Service Center about ten months; and the Nebraska Service Center about one year.

Indentured Servitude

Many of the first European immigrants to America came as indentured servants. Indentured servitude was a system, supported by the British civil and criminal laws, in which an immigrant agreed to work for an employer for a period of time (usually seven years) in return for passage to America. Many indentured servants faced harsh working conditions, and could be hunted and jailed if they attempted to leave their employment. Indentured servitude was different from slavery in that the worker was not owned as property like a slave, but was bound by contractual agreement. Indentured servitude ended with America’s independence from Britain in the late 1700’s, although slavery persisted in this country until 1865. Slavery was abolished in Britain in the 18^th century, but the practice of indentured servitude (also called "contract labor" or "coolie labor") persisted throughout the British Empire well into the 19^th century.

Our modern system of employment-based immigration has some similarities to the British system of indentured servitude of three centuries ago. Employees are bound to their employers for long periods of time, perhaps as long as seven years. Because the labor certification is owned by the employer, the employee cannot change jobs without starting the entire immigration process over again. Because of the long INS processing delays described above, that often means that changing jobs is not an option at all.

Clearly an employee waiting for an employment-based green card is not bound to his employer to the same extent that an indentured servant was bound. Unlike the indentured servant, the employee can leave the employment without going to jail, although he or she might have to leave the United States.

In some ways though the indentured servant had advantages was in a better position than the employment-based green card applicant. After completing the seven years of service, the indentured servant had the right to remain in America with complete freedom, including the freedom to work for himself or another employer. If the employer no longer needed or wanted the services of the indentured servant, the contract ended early, and the indentured servant was not required to return to Europe. In contrast, the employment-based green card applicant in some cases may have to leave the U.S. if he is fired from his job.

The injustice of this system was highlighted for us recently when one of our clients was fired while in the final stages of his green card case. We had filed his I-485 over a year ago, but it was never approved because of the processing delays described above. His six-year limit in H-1B status had expired. He now has no options to remain legally in the United States, and must sell his house and return to his home country, perhaps discouraged forever from his dreams of immigrating to the United States.

When the six-year limit on H-1B status was imposed, it was contemplated by everyone that six years would be more than enough time to complete the process for obtaining an employment-based green card in industries where there was a shortage of American workers. That may no longer be true.

The injustices created by the processing delays clearly are not intended by the INS nor by the employers who inadvertently reap the reward of captive employees. However, it is reprehensible that the situation is allowed to continue in a country founded on principles of justice and individual freedom. The U.S. Congress has an obligation to pass laws and provide funding to eliminate the processing delays and thereby correct this modern system of indentured servitude.

Consular Processing

Because of the I-485 delays, many green card applicants are seeking the alternative of consular processing. A discussion of this option, including its many drawbacks, is included in our May/June 1999 Newsletter.

One of those drawbacks is that continuing employment authorization, in the form of an Employment Authorization Document (EAD), is not provided as part of consular processing, nor is continued legal status in the United States independent of a valid nonimmigrant status such as H-1B or L-1. Those things are provided to the I-485 applicant. For that reason, many of our clients have explored the possibility of pursuing consular processing while keeping alive their I-485’s.

In order to process the green card application, the U.S. Consulate or Embassy must have the original or an acceptable copy of the I-140 (immigrant visa petition) and I-140 approval. Normally that is sent by the INS to the U.S. Consulate or Embassy (via the National Visa Center) when the applicant elects consular processing. However, when the applicant instead elects adjustment of status, the INS retains the I-140 file and matches it to the I-485 when the I-485 is filed.

In the early Fall of 1999, applicants from India successfully pursued two avenues for getting an acceptable copy of the I-140 to the U.S. Consulate. One avenue was to request the INS to send an INS-certified copy of the I-140 to the National Visa Center, which in turn would forward the I-140 to the U.S. Consulate. At least one applicant was able to do so by writing a letter to the Nebraska Service Center (NSC) of the INS. The INS agreed and sent an INS-certified copy of the I-140 was sent to the National Visa Center. The National Visa Center forwarded the INS-certified I-140 to the U.S. Consulate in Chennai and also sent the first set of application forms ("Packet 3") to the applicant. The applicant sent the Packet 3 to the consulate which scheduled an interview in Chennai within 60 days. That applicant is now a U.S. permanent resident.

Another Indian had his attorney send a copy of the I-140 and I-140 approval, certified by the attorney to be a true copy, directly to the U.S. Consulate in Mumbai, together with the Packet 3. Within a month the U.S. Consulate scheduled the applicant for an immigrant visa interview in Mumbai. That applicant also obtained U.S. permanent residence status.

Unfortunately, it appears that the INS and the State Department have foreclosed both possibilities (INS-certified and attorney-certified I-140’s). We just received a letter from the Nebraska Service Center, dated December 28, 1999, that I will quote in full as follows:

Also, during a recent (10/25/99) meeting with representatives from the American Immigration Lawyers Association, top State Department officials disapproved the use of attorney-certified copies of I-140’s, in the following exchange which I will also quote in full:

Accordingly, it now appears that the only effective means to obtain consular processing is to make an election on the I-140 itself to have the I-140 sent to the U.S. consulate or embassy abroad. We have also been able to change the election from adjustment of status to consular processing after the I-140 is filed but before it is approved. Once the I-140 is approved with the request for adjustment of status, there appears to be no way to obtain consular processing except by filing an I-824, a process – as indicated by the letter from the NSC quoted above – that can take well over a year.

Travel Outside The U.S. While Extension H-1B Petition Is Pending

It has always been unclear whether a departure from and return to the U.S. while an amendment or extension H-1B petition is pending, will invalidate the requested amendment or extension of status.

This problem presents itself when a person in the United States who is already in H-1B status submits a petition to amend or extend the H-1B status. If that person travels outside of the U.S. before the petition is approved, he or she must return to the U.S. with the old H-1B visa (assuming it has not yet expired). He or she will obtain a new I-94 that will only be valid until the date on the old H-1B visa. When the amendment or extension petition is finally approved, the approval notice will reference the old I-94, not the new one (see our October 1998 Newsletter). Will that approval notice act to also amend or extend the new I-94 (with the different number) and the H-1B status?

This question apparently has been answered in the affirmative, in the context of a person who submits a petition to amend and extend H-1B status because of a change in employers. In a policy letter dated October 20, 1999, Thomas Simmons, a supervisor at the national office of the INS in Washington D.C., wrote as follows:

We hope this information is helpful to you.