What Every Employment-Based Applicant Awaiting Visa Availability Needs to Know

By Attorneys Robert L. Reeves and Jeff L. Khurgel

Based on recent United States Citizenship and Immigration Services (USCIS) statistics, there are currently about 200,000 individuals in the United States (U.S.) who have applied for employment-based adjustment of status (Green Cards) and are waiting for their priority dates to become current. Applicants from the Philippines are mostly backlogged in the employment-based third preference category, where many have been patiently waiting since the temporary period of priority date availability in the summer of 2007. What Every Employment-Based Applicant Awaiting Visa Availability Needs to Know.

Estimates as to priority date availability indicate that these individuals may have a significant waiting period ahead of them before their Green Cards will be made available. Meanwhile, such applicants should be aware of the need to maintain a valid nonimmigrant status and of the possibility of transferring to a family-based adjustment of status case.

Nonimmigrant Status Must be Extended

Many individuals awaiting their employment-based third preference green card are also maintaining an underlying nonimmigrant status such as H-1B specialty occupation worker, L-1 intracompany transferee or, F-1 student status. Doing so is extremely prudent. Allowing one’s nonimmigrant status to lapse is not advisable for two reasons.

Firstly, most immigrants awaiting their visa availability understand that they are in a “Period of Stay Authorized by the Attorney General”, but what exactly this means is not as clear. The concept has been defined over the years by INS and USCIS to be different from maintaining a legal status, and more akin to an interim status, with less procedural safeguards. Although immigration authorities have only rarely sought to deport individuals in a Period of Stay Authorized by the Attorney General, USCIS still maintains it is legally able to do so. This notion was reaffirmed in a 2009 USCIS policy memorandum.

The second reason it is advisable to maintain one’s underlying nonimmigrant status is in case the adjustment of status is no longer viable. The employment-based adjustment of status assumes that a bona fide job offer from a qualifying employer remains valid. However, as the years pass, business plans may change, employer hiring and retention requirements may change, and once-viable job opportunities may cease to exist. In such cases, the applicant’s green card application would be denied, and it is quite possible a Notice to Appear in Removal (deportation) Proceedings would follow. However, with a valid underlying nonimmigrant status, the immigrant would not be subject to removal, and would have time to seek other immigration options.

Employment-Based Adjustment is Transferable to a Family Petition

Often, applicants waiting for their employment-based priority date to be current also have a family-based petition in their immigration history. Family-based priority dates which once seemed years from being current are suddenly moving closer to ripeness. Under USCIS guidelines, individuals with an approved family-based petition may undergo a process whereby the pending employment-based application is transferred to the family petition.
This procedure, first mentioned in a USCIS memorandum dating from 2000, and included in the Adjudicator’s Field Manual, should only be pursued after a thorough evaluation by experienced counsel to ensure that transferring the adjustment application is advisable.

Immigrants stuck in retrogression are in a position of limbo. Visa backlogs may move very slowly. However, the lives of these immigrants are anything but static. Travel plans, changes in employment, children turning 21, maintaining a valid nonimmigrant status, and other related issues are constantly evolving. Immigrants waiting in retrogression should be aware of the effect of such events on their eligibility to eventually obtain permanent residency. An evaluation by a dependable and experienced immigration attorney is imperative in successfully overseeing a valid employment-based case through completion.