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Shedding Light on Frequently Asked Questions

May 2008
Shedding Light on Frequently Asked Questions

By Subhani & Subhani

The backlog affects only immigrant visas, meaning that nonimmigrant classifications (such as E, L, and H) are not affected. This affects employment-based sponsorship for a Green Card, in its five categories, ranging from EB-1 to EB-5. The most popular among these, the EB-2 Advanced Degree Professional and EB-3 Skilled Worker/Professional, are based on an approved labor certification through the Department of Labor. These are typically the categories that backlog. Although the general countries category backlogs as well, the countries with the greatest backlog are India, Mexico, China, and the Philippines.

If my category is backlogged, when will I receive my Green Card?

Once the date on the visa bulletin reaches your priority date (the date on which your labor certification is filed for EB-2 and EB-3 cases; the date on which the I-140 is filed, for other cases), the US CIS is able to release a Green Card for your case. However, there is unfortunately no good way of determining that time frame, if your category is backlogged. The visa bulletin is released monthly, and is notoriously unpredictable. Sometimes it leaps forward, other times it retrogresses even more. However, you can monitor it monthly to determine when your priority date is reached; a new bulletin is released in the middle of each preceding month.

I’ve filed my I-485 Petition to Adjust Status, which included my work and travel permits. Do I need to keep renewing these even if my I-140 is approved?

Yes. The approval of the I-140 does not confer any personal benefits to you; the I-485 does that. Until the I-485 is approved, you need to keep renewing your work permit yearly if you intend to work on it, and your travel permit if you intend to travel.

I have an H1, and have been told that I can keep it. What are the advantages/disadvantages to that?

The H and L nonimmigrant classifications allow for dual intent, which means that you can hold those nonimmigrant statuses yet still have intent to immigrate. As a result, you are able to freely work and travel on those statuses until the I-485 is approved. Many H/L holders do not use work or travel permits obtained through the I-485 filing, so that they can preserve the H/L. The advantage to this is that if for any reason the I-485 is denied, they will still be able to remain in the US on the H/L. The disadvantage is that they are still bound to the terms of the H/L petition, and cannot use the work or travel permits.

I was sponsored for a Green Card by a company that I no longer wish to work for. My labor certification has been approved. What are my options?

This depends entirely upon where you are in the process. If an I-140 has been filed and is pending, but no I-485, then you would need to start over from step 1, with the filing at the Department of Labor. If the I-140 has been approved, and no I-485 filed, then you still need to start from step 1, but will be able to reclaim that older priority date once you file a new I-140. If the I-140 has been approved, and an I-485 has been filed and pending for more than 180 days, then you may change sponsors without having to file a new petition. You would only need a job offer in the same occupational classification as that in the labor certification, and a salary in the same range.

For answers to other frequently asked questions, readers can turn to the monthly visa bulletin found at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

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