Many of our clients have I-485 applications for permanent residence which have been pending for many years and are likely to remain pending for some time to come. We often receive questions regarding such employees' options as the process progresses. Following are some general Q&As regarding the permanent residence process once the I-485 application is pending:
Q: I have several employees with pending I-485 applications who have maintained their H-1B status but also wish to continue obtaining EAD and AP documents. Is this necessary?
A: If your employees remain in H-1B status, they can work and travel on their H-1B visas throughout the pendency of the I-485 applications. However, if they travel abroad and do not have valid H-1B visas in their passports, they will have to go to the appropriate U.S. Consulate to get an H-1B visa stamp. If, on the other hand, they have AP documents, they can travel abroad without the need to obtain the H-1B visa in their passport. With regard to the EAD, employees like to have an EAD to protect them in case there are layoffs at companies, in which case their H-1B would not enable them to immediately work for another employer since it is employer- and job-specific. An EAD grants blanket work authorization, so would allow them to do so.
Q: Many of my employees are in the EB-3 category, so I try to monitor the State Department's monthly Visa Bulletin. How is it that sometimes the priority dates in the Visa Bulletin go backwards from one month to the next? How are the dates for the Visa Bulletin determined?
A: The allocation of visas is done by projecting the possible use of visas during a given period, based on information provided by Consulates around the world, as well as by USCIS, about the number of pending cases. Sometimes, the usage outnumbers the projection, in which case the State Department has to retrogress the cutoff date i.e., the numbers go backwards. Section D of the January 2010 Visa Bulletin contains a detailed explanation of the process for allocating visa numbers via the Visa Bulletin.
Q: I have an employee who started the permanent residence process in 2005 when he was working as a Software Engineer. His I-485 has been pending for a few years now, and we'd really like to promote him to manage the department. Is this allowed?
A: Under the law, after an I-485 has been pending for more than 180 days, an employee is allowed to change jobs as long as the new job is "the same or similar" occupational classification as the position listed on the underlying labor certification. There have never been any regulations promulgated for this law, so there is no definitive definition of same or similar. However, it is generally assumed that if someone is being promoted to a more senior position in the same general job field, it meets that definition. It is always best to check with the attorney working on the case in advance of a promotion or other change to an individual's position to ensure that the new position will qualify as same or similar.
On a related note, if the individual has an I-485 pending for a job that falls into the EB3 category, and the new position has requirements that would make it an EB2 case, you may want to consider filing a new PERM case for the employee so that he or she can be moved into the EB2 category. Unfortunately, there is no way to "convert" an existing EB3 case to EB2, but you could file a new PERM case and, once approved, file a new I-140. Although you would be starting the EB2 process from the beginning, the employee would be able to retain the priority date from the original EB3 petition. In many cases, this will allow the employee to be granted permanent residence much more quickly, particularly if the individual is a native of India or China.
Q: One of my employees who is working on EAD based on a pending I-485 elected to extend the EAD on his own. I just discovered that his extension hasn't been approved yet and his current EAD expires this week. Can he continue working after the current EAD expires since the extension is pending?
A: No. He must be removed from payroll when the current EAD expires and cannot resume working until he actually receives the new EAD and presents it for I-9 purposes. Unfortunately, unlike an H-1B extension, the filing of an EAD renewal application does not extend the validity of the original EAD.
Q: This same employee has filed for an Advance Parole (AP) extension which is still pending. He intends to travel abroad next week and be gone for a month, and his current AP documents will be expiring in two weeks. Can he take this trip if he arranges to have someone send him the new AP documents when they're approved?
A: No, he cannot travel unless he has the valid AP when he leaves the country. He must have the means to return to the U.S. at the time he leaves. This can be in the form of AP or a valid visa.
Q: We have an employee with a pending I-485 who we'd like to temporarily transfer to our office in India. The assignment would last 2 years. Is this a problem?
A: This would not be a problem if the person's priority date is so far in the future that he or she could be out of the country for 2 years and still be able to return before the adjudication of the I-485. The individual must either be in the position for which the labor certification has been filed, or available to start that position, at the time of the approval of the I-485.
If you have an immigration question which you would like to see included in a future newsletter, please send it to Sally Penney at spenney@rsl-law.net.
