This means that Indian nationals who have approved EB-2 and EB-3 petitions (Form I‑140) or EB-5 petitions (Form I-526) can file applications for Adjustment of Status years before the visa availability.  Filing an Application for Adjustment of Status can provide benefits for individuals with long pending applications. This includes the issuance of Employment Authorization Cards (EADs or Employment Authorization Documents) to the principal beneficiary and dependent family members.  This also includes job portability under the provisions of AC21.

It is unclear whether employers may submit subsequently filed I-140 petitions to “downgrade” from the EB-2 to the EB-3 preference category. While this was permitted in the past, there is currently no guidance on the process. Furthermore, there are questions regarding the ramifications of subsequent filing like whether there is a loss of the EB-2 petition and whether premium processing is available.

Adjustment of Status applications filed for child dependents will not protect children from aging out of immigration benefits.  Children should take care to maintain F-1 status and transition to H-1B in the event Immigrant Visas are not available before the aging out.

The announcement can be found on the USCIS website.

 What is the Significance of this Change?

The Visa Bulletin

Individuals who are sponsored for Lawful Permanent Resident status (the “green card” or an “Immigrant Visa”) based on family-sponsorship or employment preference categories are subject to annual numerical limitations. When the demand for Immigrant Visas exceeds the annual allocation of visa numbers, a backlog can occur.  Individuals must wait until an Immigrant Visa is available in the preference category before the green card process can be completed. Nationals of India, China, Mexico, Philippines, and other countries are subject to significant backlogs in many preference categories.

The Visa Bulletin is issued by the Department of State each month.  It provides updates on Immigrant Visa availability.  The Visa Bulletin lists the dates for countries that have backlogs in specific preference categories. When the Visa Bulletin reflects a date which is equal to or after an alien’s “priority date”, the alien can initiate the final step to complete the green card process. This is done by seeking Consular Processing through the Department of State or by filing an Application for Adjustment of Status with USCIS. The priority date is the alien’s place in line based on the initiation of the green card process.  The priority date is listed on the approved immigrant petition (Form I-797).

In 2015, the Department of State and USCIS changed the Visa Bulletin by creating two charts:

Application Final Action Dates (dates when visas may finally be issued); and

Dates for Filing Applications (earliest dates when applicants may be able to apply)

The Dates for Filing Applications chart establishes when aliens can initiate the final step of the green card process. The Dates for Filing chart allows aliens to initiate the final step of the green card process years before there is visa availability. A link to the October 2020 Visa Bulletin can be found here.

Here, the Dates for Filing chart shows January 1, 2015 for India EB-3 beneficiaries. The Final Action Date, or actual visa availability, for India EB-3 beneficiaries is January 15, 2010.

Although the Department of State has applied the Dates for Filing chart for initiating Consular Processing, USCIS has not used the Dates for Filing chart for acceptance of Adjustment of Status applications.  The recent change by USCIS now allows beneficiaries of employment-based immigrant petitions who are living in the United States to apply for Adjustment of Status.

This means that Indian nationals who have approved EB-2 and EB-3 employment-based immigrant petitions (Form I‑140) or EB-5 (Form I-526) can file applications for Adjustment of Status years before the green card is available.  Filing for Adjustment of Status can provide a number of benefits for individuals with long pending green card applications through the issuance of Employment Authorization Cards (EAD or Employment Authorization Documents) to the principal beneficiary and dependent family members.

Adjustment of Status

Adjustment of status is the process allowing a nonimmigrant, like an H-1B, L-1, or O-1 holder or dependent, to be admitted to the United States as a Lawful Permanent Resident without leaving the United States. A person is considered to be under a period of authorized stay while an Application for Adjustment of Status is pending.  An applicant for Adjustment of Status is allowed issuance of employment authorization and travel authorization while the Adjustment of Status Application is pending.  Employment authorization can provide significant relief to immigrant families who may have been forced to rely on a single income or have been bonded to a single employer for many years.

Filing for Adjustment of Status based on an approved I-140 also allows the beneficiary to move to another employer under AC21 Job Portability provisions.  The beneficiary may request to port to a new employer after the adjustment application has been pending for 180 days, so long as the position is in the same or similar occupational classification.

Individuals seeking employment-based adjustment must ensure that they are not barred under Section 245(k) of the Immigration and Nationality Act, which prohibits adjustment to aliens who have failed to continuously maintain lawful status, engaged in unauthorized employment, or otherwise violated terms of admission for an aggregate period exceeding 180 days.

Subsequent I-140 “Downgrade” – Use Caution

The current Visa Bulletin pushes the availability of Immigrant Visas under the EB-3 Skilled Worker preference category ahead of the EB-2 Advanced Degree category for both India and China nationals.  USCIS’ application of the Dates for Filing chart allows beneficiaries of EB-3 petitions initiated years later than EB-2 petitions to file Adjustment of Status applications. The early filing of Adjustment of Status is can be advantageous for some.  One way for beneficiaries of approved EB-2 petitions to take advantage of the earlier EB-3 filing date is by filing a subsequent I-140 under a downgraded EB-3 category.

Subsequent I-140s have been accepted by USCIS in the past. In 2013, EB-3 priority dates for China moved ahead of EB-2 dates. There was a rush of subsequently filed I-140s which were accepted by USCIS under certain circumstances. There is no current guidance how USCIS will treat subsequently filed I‑140s now.

Supporters of subsequently filed I-140s look to the plain language of 8 CFR 204(e) for regulatory guidance:

(1) A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under section 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple approved petitions under section 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date.

One issue is that the Labor Certification issued by the Department of Labor for employment-based immigration cases is valid for only 180 days under the regulations. Since 2007, USCIS has maintained a policy permitting the use of an expired Labor Certification where an “amended petition is requesting a different visa classification than the visa classification requested in the previously filed petition”. But the policy does not expressly state new I-140s.  However, I-140s marked as new and not amended were accepted for China EB‑3 petitions in 2014. 

It is unclear whether Premium Processing would be available for subsequently filed I-140s. USCIS previously would not allow premium processing of cases where an original approved Labor Certification was not included.  In 2014, the Nebraska Service Center (NSC) indicated it would permit premium processing if the original Labor Certification was available at the NSC. However, this guidance may not apply to other service centers.  USCIS currently states that premium processing is not available where there are “Duplicate labor certification requests (that is, cases filed without an original labor certification from the Department of Labor)”.

Child Status Protection Act

The purpose of the Child Status Protection Act (CSPA) is to alleviate hardship to aliens who were Immigrant Visa beneficiaries as children, but due to delays in petition adjudication (not visa backlogs) have turned 21 years old and aged out of the immigration benefit.

Many intending immigrants from India have children who are reaching the age of 21 and will age out of derivative beneficiary status.  The CSPA helps to give additional time for the dependent to be considered a child under immigration law by subtracting the duration of time a petition was pending [Approval Date minus Filing Date] from the applicant’s age at the time an Immigrant Visa becomes available.

Careful consideration should be given to whether a child should maintain nonimmigrant status while the Adjustment of Status application is pending.  Filing of an Adjustment of Status application does not guaranty that a child will not age out from immigration benefits.  USCIS has stated, “An applicant who chooses to file an adjustment application based on the Dates for Filing chart may ultimately be ineligible for CSPA if his or her calculated CSPA age is 21 or older at the time his or her visa becomes available according to the Final Action Dates chart.”

This means that even if an Application for Adjustment of Status is filed on behalf of a child pursuant to the Dates for Filing chart, child dependents should continue to maintain F-1 status, pursue OPT, and perhaps H-1B status to hedge the possibility of aging out of permanent resident benefits.

Why the Change?

There is no indication why USCIS implemented the change.  It may be an attempt to drive fees to the agency after a decline in visa applications created revenue shortfalls. It may be an attempt to gain favor among the Indian American immigrant community before the election. It may be a prelude to elimination of other benefits like the H-4 EAD program.  We can only speculate what the administration’s motive is in making this change. Those who wish to take advantage of the change in policy should move quickly to file adjustment applications because there will be a rush to file affecting future visa availability.