Hello Everybody. This is Cyrus Mehta. Welcome to this week’s edition of immigration matters.
In our previous segment, we spoke about immigration options for nurses and I had also indicated that we would speak about options for other healthcare workers such as physical therapists in today’s segment. While I was preparing my piece on therapists, the INS issued a very interesting rule changing the procedures for filing employment-based immigrant visa applications. Since this is late breaking news which could benefit a lot of people, I will speak on this subject today and discuss healthcare workers in a subsequent segment.
Since September 11, we have focused on various INS rules that would have an adverse impact on noncitizens such as restrictions on the B-2 visa or expanded powers to detain noncitizens. Fortunately, the latest INS rule is both a beneficial and practical rule. This rule, promulgated on Wednesday, July 31, 2002, allows Form I-485, which is the application to adjust status, to be filed simultaneously with the Form I-140 petition, which is the employment-based immigrant visa petition generally filed by the sponsoring employer.
Before this rule, the Form I-140 petition had to be approved, a process that took several months before the Form I-485 adjustment application could be filed.
As of July 31, both applications can be filed simultaneously. If the Form I-140 immigrant visa petition was filed before July 31, the new rule allows for an adjustment application to be filed upon receipt of the filing notice of the petition.
As a background, the Form I-140 petition is generally filed by the employer after the employer’s underlying application for labor certification has been approved by the Department of Labor. The labor certification process is taking about one or more years in many places including New York, New Jersey and California. After the labor certification is approved, the Form I-140 petition is filed, which can also take several months. The new rule allows the I-140 petition and the adjustment of status application, Form I-485, to be filed simultaneously. At times, the underlying labor certification approval is not necessary in cases involving persons of extraordinary ability, multinational managers or even nurses and physical therapists. In these cases the Form I-140 immigrant worker petition is filed directly with the INS. As of July 31, the Form I-485, application to adjust status, may also be filed simultaneously.
The moment one files an adjustment of status application, one can get benefits such as employment authorization and travel permission. Even the spouse and minor children can file adjustment of status applications and obtain work authorization. Of course, one can only file the adjustment application if a visa number is currently available and the individual has always maintained lawful nonimmigrant status in the US. If the person has not maintained lawful status, an adjustment application may still be filed if one was protected under Section 245(i) – a provision that allows an individual to apply for adjustment of status in the US even though he or she may have previously violated status.
Although this rule, let’s call it the “Concurrent Filing Rule,” does not reflect a sweeping change in the law, it would still be able to benefit a lot of green card aspirants. Before the Section 245(i) deadline of April 30, 2001, thousands filed labor certification applications through employers in the hope of some day adjusting their status to lawful permanent residence in America. The mere filing of the labor certification application did not confer legal status. As these labor certifications get approved, they will become eligible to file I-140 petitions. Even the filing of the I-140 petition does not confer legal status. However, the Concurrent Filing Rule would now enable these people, especially one who is eligible to file the I-140 petition, to also simultaneously file the I-485 application to adjust status. The filing of this adjustment application would immediately confer legal status on this individual, and allow him or her, and the family to apply for work authorization, while waiting for the green card.
I hope you found this segment helpful and informative. If you have any questions, please do not hesitate to contact Cyrus D. Mehta & Associates, PLLC at 212-425-0555. The number once again is 212-425-0555. You can also email us at firstname.lastname@example.org
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This is Cyrus Mehta wishing you a wonderful weekend. See you again in two weeks.