USCIS recently confirmed that it used all of a record number of available employment-based visa numbers for Fiscal Year 2022 as of September 7, and the Department of State has released the first Visa Bulletin for Fiscal Year 2023. Given the large number of employees with pending I-485 applications, this FAQ will address the common questions employees will have about the Visa Bulletin movement and how it will affect their cases.
For general information about the concurrent filing of adjustment of status applications and new visa petitions, see our firm website at https://www.klaskolaw.com/blog-series/concurrent-filing-of-i-140-i-485-frequently-asked-questions/ as well as https://www.klaskolaw.com/faq/concurrent-filing/
PROCESSING QUESTIONS AND PENDING RFEs
I have a pending I-485 that was transferred to NBC or interfiled this year, but the online case status says it is still pending. What will happen with my I-485 in light of these developments?
In early September, USCIS reached the annual limit on the number of green card approvals it can process for the 2022 Fiscal Year (the year ending September 30, 2022). Therefore, USCIS will not be able to act on your application until after October 1, 2022.
If your priority date is earlier than the Final Action Date posted in the October Visa Bulletin (April 1, 2012 for both EB-2 and EB-3 India; June 8, 2019 for EB-2 China and June 15, 2018 for EB-3 China), then your application may still be processed early in the 2023 Fiscal Year if USCIS chooses to do so. If your priority date is earlier than the Dates for Filing posted in the October Visa Bulletin (May 1, 2012 for EB-2 India; July 1, 2012 for EB-3 India; July 8, 2019 for EB-2 China and July 15, 2018 for EB-3 China), then your application will most likely become current at some point during the 2023 Fiscal Year (by September 30, 2023). Unfortunately, if your priority date is later than those dates, you will have to wait for your I-485 to be approved until a future fiscal year, unless Congress makes more visas available to backlogged applicants.
I recently received a Request for Evidence for a medical examination form from USCIS but we have not yet responded. Now that visas are unavailable for 2022 and my EB-2 or EB-3 priority date is no longer “current” for October, what do I need to do?
Until further instructions are received from USCIS, we recommend replying to all Requests for Evidence, even if the employee will not be current in Fiscal Year 2023. Failure to respond to an RFE can cause USCIS to deny the I-485 application. In addition, USCIS may choose to honor medical examination reports for two years or more, so another medical examination may not be needed in the future.
I received a notice from a local office of USCIS that is not near the city where I live. What will happen with my case now?
USCIS transferred cases to local offices to be adjudicated more quickly and use all of the available immigrant visas. Now that all immigrant visas have been used for the year, remaining unapproved cases will be returned by the local offices to the National Benefits Center or the Texas Service Center to be stored until their priority dates become current again.
I still have not received my Employment Authorization Document and/or Advance Parole Document from my pending I-485. If I will be backlogged, how can I obtain those documents?
We can submit case status inquiries on your pending applications, or we can submit new applications on your behalf, if you need an Employment Authorization Document and/or Advance Parole Document for yourself or your family.
If I was not born in India or China (or if I was but my spouse was not), how is my application affected?
Because USCIS reached the annual limit on the number of green card approvals it can process for the 2022 Fiscal Year, USCIS will not be able to act on your application until after October 1, 2022. Because priority dates in EB-1, EB-2 and EB-3 are “current” for all countries except India and China, then your application may still be processed early in the 2023 Fiscal Year if USCIS chooses to do so.
UPGRADE/DOWNGRADE QUESTIONS
I am an Indian National and I have both an EB-2 I-140 dated after May 1, 2012 and an EB-3 I-140 dated before July 1, 2012 with my current employer, can I choose to “downgrade” again to my EB-3 I-140?
USCIS allows applicants for I-485s to take advantage of any current I-140 which remains valid (meaning the I-140 is for the correct employer, job and location). Therefore, if your priority date becomes current in EB-3 but not EB-2, you can make an “interfile” request to ask USCIS to use your EB-3 I-140. Please note that you cannot request an “interfile” in advance of the month in which the priority date you wish to use is current on the Final Action Date chart.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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