By Attorney Gotcher
How can you position yourself to take advantage of the opportunities that may present if new legislation is passed?
If a comprehensive immigration bill that looks anything like recent CIR proposals is passed, then it is highly likely that most individuals who have started the employment based immigration process will see their priority dates become “current” almost immediately. This will present both opportunities and challenges.
The opportunity, of course, will lie in being able to file for immigrant (“green card”) status immediately upon qualification (I-140 approval). No longer will applicants have to sit and wait for a priority date to become current. They will be able to file for immigrant status as soon as their I-140s are approved. More significantly, the distinction between EB2 and EB3 will no longer be important, as both categories will be “current.”
The challenges will come from the very large number of new adjustment of status applications that will be filed with the USCIS. Historically, over the past several decades, I-485 processing times have averaged three to five years. Only recently have we seen them drop to the six months or less that Congress mandated in the AC21 legislation.
With what is likely to be hundreds of thousands of new I-485 filings, the USCIS processing times will undoubtedly lengthen to something in the two to three year range, at a minimum. For the person who is happy just to be able to file for adjustment of status, this is not an issue. For those who want to complete the process faster, however, there is an alternative.
Overseas consular immigrant processing has consistently taken three months or less, irrespective of demand loads. The Department of State system is scalable and able to adapt to sudden increases in filings.
Those individuals who have filed for adjustment of status should stay the course and continue that procedure. Those who have not yet filed, however, should give serious consideration to overseas consular processing as a faster alternative.
To put yourself in a position to make a last minute election to go either way, you should ask your employer to designate your I-140 for overseas consular processing. If your I-140 has been approved, consider asking your employer to file a form I-864 to have the approved I-140 sent to the National Visa Center for overseas consular processing when your priority date becomes current.
Sending a case to the NVC does not lock you in to consular processing. If you change your mind at the last minute and wish to file for adjustment of status, all you have to do is file your I-485. The government will take care of the rest and your processing will not be delayed. On the other hand, if you designate adjustment of status, and later wish to do consular processing, it can take up to a year to have your file transferred from the USCIS to the NVC.