Strategies Against Backlog: China/India

Expert Chat for Strategies Against Backlog: China/India
with Carl Shusterman, Esq.

Jennifer Wipf:    Hi everyone. Good evening.   This is Jennifer Wipf and I will be moderating this chat hosted by leading immigration attorney, Carl Shusterman, who is on the phone with us right now.

Hello Carl.

Carl Shusterman:  Hello Jennifer. I am looking forward to the chat this evening!

Jennifer Wipf:  Please remember that all questions are of a general nature and should not be deemed as legal advice.

Question #1 -   A person who is out of status for 3 years has filed a labor certification before 14th Jan 1998. He receives first letter from Labor Department. Now the employer does not want to cooperate. The 45 days during which he had to get back to the Labor Department has passed. Can he still continue with the same case now?

If not, what are the options. In short, can we get the priority date back? If yes, how? What are other options?

Carl Shusterman:  The first question is whether the person continues to be eligible under section 245i. Since the labor certification
application was submitted prior to January 15th, 1998, it seems that the individual is grand fathered into those who are eligible to adjust status under section 245i.  See:

http://shusterman.com/245i-699.html

The second part of the question relates to how the person may qualify for adjustment of status now that his labor certification has been denied.

The short answer to this question is that all means of obtaining a green card are available to him. (e.g. filing a new labor certification, a petition under one of the employment based categories, which does not require labor certification, a petition based on investment, or a family based petition).

Jennifer Wipf:  Thank you. Here's another question:

Question #2   - My EB-3 I-140 has been pending since August 1998 at VSC, which is unusually long for VSC. According to my lawyer, INS doesn't say much except that it is still pending for some kind of advisory opinion. With possibility of dates getting retrogressed for March, is there anything at all I can do to get this cleared? Thanks.

Carl Shusterman:  Your lawyer should clarify what type of advisory opinion is being sought. Each service center has its own inquiry procedures. Depending on the type of advisory opinion that INS is seeking in your case, it may or may not be possible to obtain an approval of your I-140 and submit an application for adjustment of status prior to March 1st.

However, I would certainly make the attempt.

Question #3:  My 6 yr. limit on H-1visa is looming large on March 30th. I'd applied for I-140 in June 1999. Can I possibly stay in the country and wait? My application is pending at the Nebraska center. They are backlogged to November 98.

Carl Shusterman:  This one's going to be a close call. Since you are seeking to adjust status under an employment-based category, as long as you have not been unlawfully
present in the United States for 180 days or more since your last entry, you may adjust
status under section 245k.

However, since the period from November 98 to June 99 exceeds 180 days, let's hope that Northern Service Center processes your I-140 expeditiously. Good luck!

Jennifer Wipf:  Here's a question about status.

Question #4:  When exactly does your change of status occur? Once your 140 is approved? What exactly does change of status mean technically?

Carl Shusterman:  I believe you are referring to "adjustment of status" rather than "change of status," A change of status occurs when the INS approves your application to change from one temporary status to another (e.g. from an F-1 student to H-1B professional worker).

Adjustment of status, on the other hand, occurs when INS approves your form I-485 thereby granting you lawful permanent residence. See:

http://shusterman.com/toc-gc.html

Question #5: I have EB-1 waiting for FP notice. Can I switch jobs during this period?

Carl Shusterman:   If you are referring to the subsection of EB-1 which refers to "aliens of extraordinary ability", you may change jobs at any time.

However, if you are referring to one of the other two EB-1 categories, either outstanding professors and researchers or multinational executives and managers, the answer to your question is a bit more involved.

Jennifer Wipf: Thanks Carl. I have a very long list of questions! Here's our next one:

Question #6: What are the pros and cons of CP?

Carl Shusterman:  The pros of combined processing, also known as adjustment of status, are as follows:

1) You may obtain permanent residence without departing the United States, thereby saving yourself airfare and hotel bills.

2) You may obtain a work permit (EAD) which allows you--in addition to working for your petitioning employer--to moonlight on
evenings and weekends and even to start your own business on the side.

3) You may apply for a travel document ("advance parole"), which allows you to travel whenever and where ever you wish without having to justify the purpose of your trip to the INS

4) If there is an interview, you will be able to have your attorney sit next to you, which you probably would not be able to afford if the interview took place in India or China.

And

5) If something goes wrong with your
case you will be able to pursue your legal remedies, and even go to Federal court if this becomes necessary.

The cons:

Adjustment of status in California
prior to October 1994 used to take 90 days, which was a lot longer than it took in places like New York City. Now, no matter where you are, adjustment of status seems to take at least two or three years. And at least one service center has ceased processing applications for adjustment of status based on
employment.

On the flip side you can save a lot of
time by obtaining your green card in your own country. This is true even if you have already applied for adjustment of status.

You can even travel on an advance parole, thereby minimizing your chances of getting stuck abroad if your application goes south during the interview.

For more information about changing from adjustment of status in the US to applying for an immigrant visa abroad, See:

http://shusterman.com/dos-iv797.html

Jennifer Wipf: That should be helpful to a lot of people here. Here's another question:

Question #7: Can we predict when the priority date retrogression will be by counting how many I-485s have been approved this year?

Carl Shusterman: Not without a crystal ball.

However, in the February 2000, the State Department Visa Bulletin included under section D, Future Visa Availability, The following words of wisdom, and I quote, "China- mainland born: If visa number use continues at the current heavy level, this chargeability may become over subscribed as early as March with visa cut-off dates required for some or all of the Employment-based categories.

India: The India Employment-based Second and Third preference categories "are expected to become oversubscribed in March." Although I can't personally attest that the State Department official brought these words with him as he climbed down from Mt. Sinai, as far as predicting what the March Visa Bulletin will look like, this is as good as it gets.

Question # 8:  I heard that they are going to discontinue the "per-country" quota for EB based Green Card applicants. Has the rule come into effect, or is it going to be in effect soon? It will be a BIG Help to all the Chinese & Indians.

Carl Shusterman: 

I believe that you are referring to the proposed legislation referred to in topic 3 of the January issue of Shusterman's Immigration Update. See:

http://shusterman.com/jan00.html#3

The Hatch-Abraham bill would apparently abolish "discriminatory" country quotas from the employment-based immigrant visa system. This bill should be introduced within the next week or two.

However, this provision may not survive without a whole lot of lobbying from you all. A similar provision was contained in the Senate version (S.1723) of the 1998 bill to raise the H-1B cap. However, it was dropped in the Senate-House conference committee. This time I hope you will all lobby your congressman and senators.

Just wishin' and hopin' ain't gonna do it!

(Note inserted post-chat from Carl: Two days after this chat, on February 9, 2000, the Hatch-Abraham bill to
raise the H-1B cap - S.2045 - was introduced in the Senate. A sample letter in support of this bill may be found at: http://shusterman.com/s2045ltr.html)

Jennifer Wipf: This question is very specific, but several people have similar concerns:

Question #9: My Practical Training expired on Nov. 99 while my H-1B was still pending. How long I can still stay in U.S. while my H-1B is pending? If the Quota is reached, what do I need to do? How hard is it to get an H-4 visa from Beijing Embassy and reenter U.S. (My husband is working on his H-1B)?

Carl Shusterman: If you have already filed a change of status application from F-1 practical training to H-1B, there is little or no danger that you will be effected by the cap.

However, it is impossible for me to advise you on your chances of receiving an H-4 visa in Beijing without knowing more facts about your particular situation.

Have you ever thought of how nice a short vacation to Mexico might be at this time of year
;-)   ?

See:

http://shusterman.com/toc-temp.html   

and scroll down to Miscellaneous Issues Regarding Temporary Visas.

Question #10:  If a newly married couple filed I-485 separately under EB3 back in August, is there any way to combine the two applications into one now so that one of them can go to work for another employer?

Sure, whichever I-140 gets approved first and becomes current, both of you can file I-485s , obtain EADs, and the derivative spouse can quit his or her job, and go to the beach :-)

(or if you wish, change jobs.)

Jennifer Wipf: If we have any more questions, India/China specific, I can take one more, but please submit it after this next one I'm about to put forward.

:-)

Question #11:  My I140 application was submitted to CSC in 5/99. In other words I am very close to getting my I140 approved. But if there will be a new backlog in 3/00, what can I do to "save my own life"?

Carl Shusterman:  Hopefully your temporary working status will not expire any time soon. However, if it does, think 245k and cross your fingers.

The backlogs at INS, as you all know, have never been worse.

I have clients who have retained our law firm to go to Federal court and do what lawyers do best: sue.

If your application or petition exceeds the normal processing time and the government cannot provide a reason why this is so, a trip to Federal court may persuade the INS to approve your application without further delays.

However, for those caught under the outmoded country quota system, when the EB dates start to backlog, in March or April, the answer is to organize (There are already groups of Indian and Chinese professionals devoted to performing the present immigration system.)

And make sure that your Member of Congress realizes that delaying your permanent residence and forcing you to return to your country will severely disrupt not only your personal life but the technological revolution that has been driving the US economy   for the past decade.

Goodnight and good luck when the March visa bulletin! It will be released by the State Department in the next few days.

Jennifer Wipf: Sorry we kept you overtime tonight Carl! It's been our biggest chat yet. Have a great evening and thanks for coming, as always.

Carl Shusterman:   It's been a pleasure answering your questions. Have a nice night Jennifer, and everyone.

Jennifer Wipf:   Good night! Those who wish to may feel free to remain here and chat openly.

 

Remember to follow-up with these popular and informative links:

India Page, compiled by Carl Shusterman, Esq.
Includes news specific to Indian nationals and immigrants, embassy and consulate information and more.

FAQ's In Chinese - From MCI Worldlink, much of it translated from Shusterman.com

Immigration Articles & Chat Transcripts from the guides to this site, Peter and Jennifer Wipf.

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