October 2020 VB Discussion

[Zenzone]

My employer has an approved PERM, I-140 not filed yet . ( Priority Date Oct 2010 from previous employer) . What do you think is the best option, applying in EB2 or EB3. All indications seem to suggest EB3 FAD would move faster and stay ahead than EB2.

I will be careful here. It will all depend on the downgrade volume. Also, for ppl. who upgraded from EB3 to EB2 can file using the EB3 I-140 as such. You don't know how much such volume exists. They will add to the EB3 pipe pretty quickly.

[Positive]

That's not accurate. You can file concurrently when the filing dates are current.

That is my understanding too. i don't think there is any legal ramifications from filing dates v. FAD dates except that they give USCIS an option to use one or the other for accepting AOS filings.

[qesehmk]

Can you point to a source for this? Are you saying that those downgrading from EB2 to EB3 cannot file I-485 until their I-140 is approved unless their priority is current under FAD? Downgrading requires filing a new I-140.

That's not accurate. You can file concurrently when the filing dates are current.

Can you point to a source for this? Are you saying that those downgrading from EB2 to EB3 cannot file I-485 until their I-140 is approved unless their priority is current under FAD? Downgrading requires filing a new I-140.

Here is the source ... https://www.uscis.gov/green-card/gre...-of-form-i-485

Happy to be proven wrong. If somebody can interpret this please chime in.

[Zenzone]

That is my understanding too. i don't think there is any legal ramifications from filing dates v. FAD dates except that they give USCIS an option to use one or the other for accepting AOS filings.

Bingo! True that

[maverickwild]

Here is the source ... https://www.uscis.gov/green-card/gre...-of-form-i-485

Happy to be proven wrong. If somebody can interpret this please chime in.

I was originally EB2 , when my filing date ( not FAD) for EB3 was current in Jan last year ,I was able to downgrade ,file concurrent 140 and 485 in EB3. I am on EAD since.

[qesehmk]

I was originally EB2 , when my filing date ( not FAD) for EB3 was current in Jan last year ,I was able to downgrade ,file concurrent 140 and 485 in EB3. I am on EAD since.

So it seems USCIS somehow is not strict about its own guidance. Hey I wouldn't complain about it.
Bottomline: go ahead and file concurrent. Worse case is waste of some money and effort. But the benefits of 485 will outweigh any potential loss.

[vbollu]

If I downgrade my I-140 from eb2 to eb3 with the same employer, in future if I want to use my old EB2 I-140 will that be valid or do I need to file new perm and I-140? can experts through some light on this?

[inspired_p]

If you check my previous posts I was advising NOT file in EB2 for more than 6 or 7 years now.. instead file it in EB3.. now I can even more strongly say to go for EB3..

If I downgrade my I-140 from eb2 to eb3 with the same employer, in future if I want to use my old EB2 I-140 will that be valid or do I need to file new perm and I-140? can experts through some light on this?

I was a part of a FB live webnar setup by HIRE IT, and the answer to this question from the lawyer is EB2 petition is still valid, EB3 downgrade is a petition amendment, and if EB2 dates are favorable in the future, there is something called Interfilling to use the old EB2 petition.

[inspired_p]

If you check my previous posts I was advising NOT file in EB2 for more than 6 or 7 years now.. instead file it in EB3.. now I can even more strongly say to go for EB3..

That's not accurate. You can file concurrently when the filing dates are current.

Thank you.

[Zenzone]

Here is the source ... https://www.uscis.gov/green-card/gre...-of-form-i-485

Happy to be proven wrong. If somebody can interpret this please chime in.

The caveat here is this -

When adjudicating concurrent filings, we determine the eligibility for the immigrant visa petition first. If a visa number remains available for the immigrant classification and your Form I-485 is approvable (which in certain cases requires an interview), we will generally consider the adjustment application at the same time. We will mail separate decision notices for both forms.

By Visa number being available - The interpretation is a visa number is expected to be available in the near term based on current projections a.k.a filing date basis.

[Positive]

Here is the source ... https://www.uscis.gov/green-card/gre...-of-form-i-485

Happy to be proven wrong. If somebody can interpret this please chime in.

I don't see FAD or filing dates in this guidance, only that visa be immediately available. Has the USCIS ever differentiated the two and defined FAD as visas being immediately available and the filing date=visas not immediately available? I don't think so. FAD and filing dates have no basis in statute or even regulations I believe. It's just gobbledygook, as Scalia would say.

[Zenzone]

If I downgrade my I-140 from eb2 to eb3 with the same employer, in future if I want to use my old EB2 I-140 will that be valid or do I need to file new perm and I-140? can experts through some light on this?

You don't have to file another EB2 I140 in that case. Yes interfiling is possible. Similarly if you upgraded from EB3 to EB2 you don't have to file an EB3 I-140 again either. It is lawfully allowed to have more than one I-140 across categories and file for AOS just based on whichever category meets your PD the earliest.

[nbk1976]

The caveat here is this -

When adjudicating concurrent filings, we determine the eligibility for the immigrant visa petition first. If a visa number remains available for the immigrant classification and your Form I-485 is approvable (which in certain cases requires an interview), we will generally consider the adjustment application at the same time. We will mail separate decision notices for both forms.

By Visa number being available - The interpretation is a visa number is expected to be available in the near term based on current projections a.k.a filing date basis.

Well of course, this seems like a sensible policy. Otherwise, what possible use is of the "filing date"?

[vbollu]

You don't have to file another EB2 I140 in that case. Yes interfiling is possible. Similarly if you upgraded from EB3 to EB2 you don't have to file an EB3 I-140 again either. It is lawfully allowed to have more than one I-140 across categories and file for AOS just based on whichever category meets your PD the earliest.

I was a part of a FB live webnar setup by HIRE IT, and the answer to this question from the lawyer is EB2 petition is still valid, EB3 downgrade is a petition amendment, and if EB2 dates are favorable in the future, there is something called Interfilling to use the old EB2 petition.

if that is the case, every one will benefit with this rule.

[Zenzone]

if that is the case, every one will benefit with this rule.

Quick question. Do you need to complete medicals BEFORE we file for 485 (just based on filing date) and not final dates.

[vbollu]

Quick question. Do you need to complete medicals BEFORE we file for 485 (just based on filing date) and not final dates.

no, not needed as per my knowledge.
https://cilawgroup.com/news/2017/11/...status-filing/
Must I-693 medical exams be submitted with the initial I-485 filing?

The short answer is, NO. USCIS policy requires only that the medical exam be submitted any time prior to adjudication. According to the USCIS Policy Manual,

[nbk1976]

no, not needed as per my knowledge.
https://cilawgroup.com/news/2017/11/...status-filing/
Must I-693 medical exams be submitted with the initial I-485 filing?

The short answer is, NO. USCIS policy requires only that the medical exam be submitted any time prior to adjudication. According to the USCIS Policy Manual,

However, just my opinion: if possible send all documents together to make sure the packet is complete.

[Zenzone]

However, just my opinion: if possible send all documents together to make sure the packet is complete.

Yes. But the negative side is that if the final action takes longer than expected, medicals will expire and you would have wasted money, time and effort. That's the trade-off.

[Zenzone]

no, not needed as per my knowledge.
https://cilawgroup.com/news/2017/11/...status-filing/
Must I-693 medical exams be submitted with the initial I-485 filing?

The short answer is, NO. USCIS policy requires only that the medical exam be submitted any time prior to adjudication. According to the USCIS Policy Manual,

Thanks. That's what I heard from few of my other sources too.

[dus_saal_baad]

Hello friends,

New member here. My PD is Aug 20 2009 in EB2 and am now current. I have EAD and had applied for i485 already few years ago. Also got medical and RFE taken care of.

What is next for me? Do I have to check mails and nothing else?

[NJMavarick]

FWIW - Q - I am current as well....this forum was literally the support I needed to wade through the past few years. Thank you!

[NJMavarick]

Yes. But the negative side is that if the final action takes longer than expected, medicals will expire and you would have wasted money, time and effort. That's the trade-off.

True! I say if you expect your date to be current in the Final Action chart in the next 2 years, then its best to submit it together rather than receiving an RFE later..

[nbk1976]

Yes. But the negative side is that if the final action takes longer than expected, medicals will expire and you would have wasted money, time and effort. That's the trade-off.

But didn't they make the medicals valid for 2 years now, from the earlier 1 year? That should help reduce that occurrence. I don't know having never experienced this situation. I feel bad though from stories here of folk having done the medicals 2 or 3 times.

[Turbulent_Dragonfly]

But didn't they make the medicals valid for 2 years now, from the earlier 1 year? That should help reduce that occurrence. I don't know having never experienced this situation. I feel bad though from stories here of folk having done the medicals 2 or 3 times.

Yeah I am checking on this with my attorney too. The medicals are valid for 2 yrs. so I am guessing that will be good enough for EB2 FA to be current by then.

[qesehmk]

FWIW - Q - I am current as well....this forum was literally the support I needed to wade through the past few years. Thank you!

Great! Happy for you!