Law Office of Leila Freijy PLLC
Immigration & Compliance Law 
Significant movement in EB priority dates for October 2020
Very Important!  Please distribute to your employees with approved I-140s
October 1, 2020 marks the beginning of the federal fiscal year (FY21), and with it, the infusion of a new allocation of immigrant visa numbers. This infusion typically results in some forward movement in Final Action Dates in the month of October. The October Visa Bulletin was published on 9/24/2020 and later in the day the USCIS indicated that EB I-485 applications would be accepted based on Filing Date.
 
Unique forward movement
 
This October's Visa Bulletin is unique; however, given competing tensions caused by the COVID-19 global pandemic. On the one hand, diminished agency processing capacity is likely to limit advancement in certain preference categories and across the family-based (FB) preference categories. On the other hand, most employment-based (EB) categories have the potential to experience significant forward movement, as explained further below. What remains uncertain is to what extent, if any, diminished agency capacity might curb advancement in the employment-based preference categories.
 
Infusion of unused Family-Based Numbers from FY20
 
For FY21, the allocation of employment-based visa numbers is expected to be unprecedentedly high. This is because the INA requires unused family-based visa numbers from the immediate prior fiscal year to be added to the employment-based allocation (and vice versa). There was significant employment-based numbers used in FY20 before the COVID-19 pandemic began, while in contrast there has been minimal FB number usage because of extremely limited consular processing due to the pandemic and the immigrant visa restrictions of PP 10014 that suspended immigrant visa processing at U.S. Consulates.
 
It is possible that 250,000 or more unused FB immigrant visa numbers will be added to the EB immigrant visa pool for FY21. This would represent a 63% increase over the highest allocation in recent memory. While this is great news for individuals who have been waiting many years for their priority dates to become current, it will likely also result in a slowdown in processing
I-485 and related applications.
 
On the other hand, for FY21, it is expected that the usage of family-based immigrant visas will continue to be significantly low in comparison to prior fiscal years due to the continuing global pandemic and the various travel bans that remain in effect. So, it's possible that EB visa numbers will continue to exhibit substantial forward movement in FY22.
 
Downgrading to EB3
 
For some categories, especially those born in India and China, EB3 has actually moved ahead of EB2 for October 2020. For cases in which an employee has an approved I-140 in the EB2 category, we can concurrently file a new I-140 petition with the I-485 filing in order to downgrade the petition to EB3 and take advantage of the current EB3 priority date.
 
Current priority dates for October are shown below:
 
Category
All Others
China
India
Mexico
Philippines
El Salvador
Guatemala
Honduras
EB1
C
9/1/2020
9/1/2020
C
C
C
EB2
C
10/1/2016
5/15/2011
C
C
C
EB3
C
6/1/2018
1/1/2015
C
C
C
 
If your priority date is earlier than the date listed, then it is current in October. This includes individuals with an EB2 priority date that, if downgraded to EB3 would be current.
 
Our plan and your action items
 
We are in the process of generating reports to see which individuals have current priority dates based on their existing classification (e.g. EB2) and which individuals would need to be downgraded to EB3 in order to be current in October.
 
If your priority date is current based on your existing category (e.g. EB2 India), there is no need to contact our office. We will initiate your I-485 as soon as possible.
 
If you need to be downgraded to EB3 or if our office did not prepare your I-140 but is currently representing your employer, please contact our office to make sure we have you on our list if you have not already done so.
 
Then, we will begin initiating these I-485 cases and emailing the questionnaires that will need to be completed and the list of documents we will need. Please check your junk/spam folders daily to make sure that our initiation emails don't end up there.
 
Employment and Travel Authorization documents
 
Beginning in October 2020, the USCIS has imposed separate filing fees for employment (EAD $550) and travel (advance parole or AP $590) applications.  Previously, there were no additional USCIS filing fees associated with these applications if they were filed together with the I-485 (green card) application. 
 
As a result of this change, we will only be preparing EAD/AP applications if you specifically ask us to, except in some rare circumstances where the EAD/AP applications will be required; for example, if you are in a nonimmigrant status that does not permit immigrant intent like F-1 or TN.  Should you choose to have us prepare EAD/AP applications, there are no additional legal fees for the initial applications if prepared at the same time as the I-485 application.  However, if the EAD/AP documents need to be renewed in the future, which is likely, you will incur additional legal fees and USCIS filing fees for the renewal applications.
 
If you choose not to apply for EAD/AP documents you will need to maintain your nonimmigrant status and will need to have a valid H or L visa stamp in your passport in order to travel internationally and return to the U.S. while the I-485 is pending.
 
Medical Exams and Photos
 
We're going to need 4 passport style photos (front facing on white background) for each I-485 applicant. You can begin the process of obtaining these if your priority date is current in October.
 
Medical exams, if submitted with the I-485 applications, will only be valid for two (2) years; however, there is no requirement that medicals be submitted at the same time as the I-485s. In order to save time and money and the possibility of having to re-do the medical exams again later (at an additional cost) if I-485 processing exceeds two (2) years (which is possible), we recommend not having your medical exams done now. You can have these done when your interview is scheduled and bring them to the interview with you.
 
Please bear with us as we work to prepare and file these I-485s and downgraded I-140s in October.
 
* * *
  
This client alert is being provided only to company representatives.  Please distribute to any  foreign national staff who have approved
I-140s.

If you have any questions or concerns about the information provided in this email, please don't hesitate to contact me.

 

Sincerely,

 


Leila Freijy
Law Office of Leila Freijy PLLC