October Visa Bulletin AOS

2020 October Visa Bulletin and Employment-Based (EB) Adjustment of Status

The 2020 October Visa Bulletin published by the Department of State (DOS) resulted in big moves, advancing most EB categories forward across all nationalities. The United States Citizenship and Immigration Service (USCIS) has confirmed that it will use the Dates for Filing table from the Visa Bulletin to determine if a person qualifies to file for adjustment of status.

If you are looking to file your adjustment of status application or downgrade your EB-2 immigrant petition to EB-3 concurrently with your adjustment of status application, please see below for our Zoom information sessions and how to initiate the process with MPLG.

The Dates for Filing Chart

Please see the October 2020 Dates for Filing Chart below:

If your priority date falls on or before the above-listed date for your employment-based (EB) category, you are able to take the next step towards the green card: filing the adjustment of status application.

Applications for Adjustment of Status based upon the October Visa Bulletin will be accepted beginning on October 1, 2020, through October 30, 2020.[1] Please be aware that any application filed within the month of October will be deemed timely for purposes of filing for adjustment of status pursuant to the October Bulletin. There is no added benefit to filing earlier than later in the month.

EB-2 downgrades to EB-3

Preference category downgrades are possible during this time as EB-3 advanced forward past EB-2 for the month of October. This option may be of interest for certain foreign nationals seeking independent work authorization and advance parole.  

FAQs

Please review the FAQs tab where many of your immediate questions may be answered. You can also download the FAQs from the right navigation bar if you are viewing this page on a computer; or at the bottom of this page if you are viewing this page from a smart phone. 

Expedited Intake

In lieu of phone consultations, we have streamlined the initiation process through our quick online intake. Please click on the AOS Intake tab at the top navigation and complete the short intake. Our team will respond to your inquiry within the same business day on the next steps.

MPLG Zoom Information Sessions

The MPLG team will be hosting two Zoom information sessions on employment-based adjustment filings and I-140 downgrades. You may register for a Zoom session at the following links:

Visa Bulletin Information Session, October 7, 2020

Visa Bulletin Information Session, October 14, 2020

Fee Schedules

Please see our two fee schedules on the right-hand sidebar:

  • Employment-Based Adjustment of Status Application Fees. This fee schedule is for the adjustment of status filing only and includes fees for the principal, applicants, and dependents.
  • EB-2 Downgrade I-140 Petition Fees. This fee schedule is for the I-140 petition only. Adjustment of Status application fee schedule will also apply for concurrent filings. Please note that if MPLG will be representing the company for the I-140, we will need to enter into a joint representation of both the petitioning company and the Beneficiary.

Filing with MPLG

Once a case is confirmed and a legal services agreement is executed, MPLG will take the following steps to support your filing:

Initiation and Questionnaire: MPLG will send initiation emails with document checklists and required questionnaires through INSZoom. Questionnaires must be completed for processing.

INSZoom: For seamless information and document collection, MPLG uses the immigration management portal INSZoom. Applicants will receive credentials to INSZoom upon initiation of the case.

Zoom Information Session: MPLG will be hosting bi-weekly information sessions throughout the month of October on the initiation process and how to complete questionnaires and upload your documents.

Form Signatures: USCIS has continued its flexibility during the COVID pandemic in accepting scanned signatures. MPLG will be collecting scans of signature pages only for filing.

Photos and Medical Examinations: MPLG will provide detailed instructions in the initiation email on where these items must be sent. We strongly advise sending these items via certified overnight mail or FedEx.

Final Review Prior to Filing: MPLG will send your full application to you for final review and approval before filing your case.

A note on medical examinations:

You are NOT required to submit Form I-693 at the time you file your adjustment application but may do so if you wish. Because of the time-limited validity of Form I-693, you may choose to submit your Form I-693 after you file your Form I-485. You may also submit Form I-693 in person at an interview in a USCIS field office if an interview is required. By waiting to submit Form I-693, you may avoid having to repeat the immigration medical examination.

Medical Examinations are considered valid for up to two years and are only valid for submission within 60 days of completion.

Timeline

In order to best meet your immigration needs, please see below for filing timelines:

 

Action Items Required Timeline

(We encourage you to provide details sooner)

Legal Services Agreement (executed) and payment of ½ of fees September 28, 2020-October 20, 2020
Document collection and signature pages September 28, 2020-October 26, 2020
Payment of 2nd ½ of fees and filing fees (must be received within the timeframe) September 28, 2020-October 26, 2020


October 20th Cut-Off: 
For cases initiated after October 20th, our law firm cannot guarantee timely filing pursuant to the October Visa Bulletin.

All required documents must be received no later than October 26th; after this date, our law firm cannot guarantee timely filing pursuant to the October Visa Bulletin.

How to Get Started with MPLG

Please complete the AOS intake sheet online which you can access at the tab at the top of this web page. Upon confirmation, our team will initiate the case. 

We look forward to serving you and filing your adjustment of status application!

[1] Please note that October 31st, 2020 falls on a Saturday. USCIS does not accept filings on Saturdays, so the last day for a case to be considered timely received and pursuant to the October Visa Bulletin is Friday, October 30th, 2020.

FAQS: Employment-Based (EB) – Adjustment of Status (AOS) – October Visa Bulletin 2020

On Thursday September 24th, the October Visa Bulletin was published by USCIS, advancing most EB categories forward across all nationalities. Please see the Dates for Filing table from the Visa Bulletin below:

This rapid movement in the priority dates (PD) have raised several questions. We address some of those below:

General Questions:

  1. Have the priority dates for EB-1, EB-2 and EB-3 have progressed in the “Filing Dates” chart. If so, does this mean I can file my I-485 (green card) application?

Yes, the priority date for the first three Employment Based categories (EB-1, EB-2 & EB-3) have progressed for the month of October from September 2020. In October the filing dates for EB-1, EB-2 and EB-3 categories have progressed, specifically for China and India.

For India:

EB-1 preference category: From July 1, 2018 to September 1, 2020

EB-2 preference category: From Aug 15, 2009 to May 15, 2011

EB-3 preference category: From February 1, 2010 to January 1, 2015

For China:

EB-1 preference category: From July 1, 2018 to September 1, 2020

EB-2 preference category: From Aug 1, 2016 to Oct 1, 2016

EB-3 preference category: From May 1, 2017 to June 1, 2018

If your priority date is current, then depending on the category (EB-1, EB-2 or EB-3) you are eligible under, you can file your I-485 application.

For example: If your country of chargeability is India and your PD is May 15, 2011 or earlier (under EB-2) or is January 1, 2015 or earlier (under EB-3), then you can file your I-485 application.

  1. What are Final Action Dates and Filing Dates?

Every month, USCIS publishes a visa bulletin. If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, USCIS will state on its website that an applicant may use the Dates for Filing chart. Otherwise, USCIS will indicate on its website that an applicant must use the Final Action Dates chart to determine when one may file their adjustment of status application.

If your priority date is current with the Final Action Dates in the September Visa Bulletin, then it means visa numbers with your priority date or earlier have become available for the preference category and that USCIS is ready to adjudicate your green card application.

If your priority date is current with the Filing Dates in the October Visa Bulletin, then it means that USCIS is ready to accept your I-485 application even though visa numbers are not yet available.

NOTE: Even though the Filing Dates are current for your case and you are able to file your I-485 application, since the Final Action Dates may still not be current, it could take a few years before you can actually receive your permanent resident status. Your priority date must be current with the Final Action Dates in order for USCIS to grant permanent residence (i.e. the Green Card).

  1. How soon should I file my I-485 application?

The Visa Bulletin is issued on a monthly basis and sets forth the availability for an immigrant visa per country for the entire month. Therefore, if your priority date for filing became current in October, you can file during the entire month of October. It does not matter whether you file on October 1st or the last day of October. Since October 31st lands on a Saturday, we recommend that you file so that your case reaches USCIS anytime between October 1 through October 30th.

  1. What are the benefits of filing an I-485 application?

The I-485 application allows for applicants to apply for employment authorization and permission to travel as interim benefits while the application is pending. It also allows principal applicants to change employers pursuant to INA Sec. 204(j) after the I-485 application has been pending for 180 days. Please note that new positions must be in a same or similar occupation with an employer for the I-485 application to continue to be valid.

  1. I am outside the US now; can I file my I-485?

Unfortunately, you will not be able to file your I-485, if you are outside the US at the time of filing. You must be in the US to adjust status to permanent resident. That includes eligible family members as well.

  1. Can I travel after I file my I-485?

Yes, BUT you must either have Advance Parole (discussed in the next FAQ section) or be maintaining your H or L status and have a valid visa. If you are not on an H or L, and do not have advance parole, and you still travel internationally, that travel will be deemed an abandonment of your adjustment of status application. This equally applies to derivative family members (spouse, children).

  1. Can I change employers after I file my I-485 application?

If you have submitted an application for adjustment of status based upon an approved I-140 visa petition approved under one of the Employment-Based preference categories, you may change employers pursuant to INA Section 204(j) if the following conditions are met:

  • Your adjustment of status application has been pending for at least 180 days; and
  • The new position is in the same or similar occupation as the job offer listed in the approved I-140 petition.

Your new employer will need to confirm that a bonafide job offer exists using Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j).

  1. Must I be in valid status when I file my I-485 application?

You must be in a valid non-immigrant status in the U.S. to file the I-485 application.

Please note that INA Sec. 245(k) does provide an exception for persons who are out of status if they have not accrued 180 days or more of unlawful presence. Please consult with an attorney for more details on this analysis.

  1. Must I maintain my non-immigrant status while my I-485 application is pending?

Once your I-485 application is confirmed as received and receipted, you are no longer required to maintain an underlying status. This is because the timely filing of an adjustment of status application allows for you to remain in the U.S. while the application is pending without accruing unlawful presence. In addition, the concurrent filing of employment authorization and advance parole applications will allow you to work and travel. Please note that these interim benefits can take time to be issued, which can result in breaks in employment authorization due to uncertain processing times.

MPLG advises that you maintain an underlying status until the green card is issued wherever possible. if for any reason your I-485 application is denied, you will have a status to fall back on.

Family Members and Child Status Protection Act (CSPA)

  1. Can any of my family members apply for their I-485 application with me?

Yes, your immediate family members – spouse and unmarried children under 21 – are eligible to file the I-485 application as derivative applicants. They are required to submit their own separate applications and filing fees, though you can mail them together to USCIS. Children who are older than 21 years old may still qualify under the Child Status Protection Act (CSPA). See FAQs under CSPA.

Parents, siblings, and other family members do not qualify as derivatives eligible to apply for the Green Card.

  1. What happens to my child if they are close to aging out (i.e. 21 years old), or will age out prior to the Final Action Date becoming current for my priority date?

The Child Status Protection Act (CSPA) is intended to provide some relief for children to prevent them from “aging out”. The CSPA allows the child to subtract the number of days that the I-140 was pending from the child’s biological age, at the time that the Immigrant Visa became available, in order to provide them with a new “immigration age”.

Further, if the child is under 21 using the adjusted CSPA on the date the visa becomes available, s/he will have 1 year to “seek to acquire” LPR status. If they satisfy that requirement, they will preserve their derivative status until they immigrate or adjust status, provided they remain unmarried. This age is frozen, even if the priority date later retrogresses.

For example, if the I-140 was pending for 15 days, then 15 days would be subtracted from the child’s age when the priority date for final action became current, and the child has 1 year from that date to file for their Green Card either through Adjustment of Status or through consular processing of an Immigrant Visa.

Below is the formula for determining eligibility:

“CSPA age is calculated by subtracting the number of days your petition was pending (pending time) from your age on the date an immigrant visa becomes available to you (age at time of visa availability).”

  • The formula for calculating CSPA age is as follows:

Age at Time of Visa Availability – Pending Time = CSPA Age

  • Pending Time

The length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date. The formula determining the length of time the petition was pending is as follows:

Approval Date – Filing Date = Pending Time

  • The date the visa is considered available is the later of these two dates:
  • The date the petition was approved; or
  • The first day of the month of the Department of State Visa Bulletinthat indicates that a visa is available for you in the Final Action Dates chart.

Even if your priority date is current under the Filing Dates, unless your priority date is current under the Final Action Dates, before your child ages out, s/he may not be able to benefit from the AOS application.

Therefore, you should make arrangements to change your child who will age out to a different non-immigrant category to ensure s/he does not fall out of status. This change of status to nonimmigrant status will become even more important should you not continue to maintain your nonimmigrant status (H1B/L-1).

However, if in the month of October, your child has now not aged out yet, it may be prudent to file your child’s AOS application as well and seek the interim benefits of EAD and AP until they age out.

Employment Authorization (EAD) and Advance Parole

  1. Can I file applications for Employment Authorization Document (EAD) and Advance Parole (AP)?

Yes, you can. The Employment Authorization Document (EAD, Form I-765) and Advance Parole (AP, Form I-131) are “interim benefits” that you can apply for while your Adjustment of Status (I-485) case is pending.

We typically recommend that you maintain your underlying non-immigrant status rather than using the EAD / AP; but we also recommend filing for the EAD and AP as a back-up option in the event you are unable to maintain your non-immigrant status.

  1. Are there additional fees for the Employment Authorization Document (EAD) and Advance Parole (AP)?

Currently, there are no additional filing fees to apply for these benefits. However, USCIS has issued a proposed rule to charge filing fees for these applications, but that rule is currently enjoined by a federal court. So, for now, there are no additional fees.

  1. How long is the EAD/AP card valid?

The EAD is valid for either 1 or 2 years. Typically, it is valid for 2 years if the priority date is not current. You can keep extending the EAD card as long as your I-485 (GC) is pending decision with the USCIS.

The AP and EAD are issued as combination card and so the validity on the EAD is typically the validity on the AP as well.

H-4 Applicants

  1. I am in H-4 status and have an EAD with my employer. Should I convert to H-1B to show maintenance of status?

If you are maintaining your H-4 status, there is no requirement to convert to H-1B to show maintenance of status.

  1. I am in H-4 status and working with my H-4 EAD. My I-140 was filed by my employer and my priority date is current. Can I file my I-485 using the I-140 approval?

Yes, you can, as long as your employer can verify that a bona fide job offer (on the I-140) is still available by filing the I-485 supplement J.

Retrogression

  1. What is retrogression? Can the Filing Dates Retrogress?

Retrogression is when a priority date that is current in a month may not be current in the subsequent month or it may even move backwards to an earlier date. This occurs when more people apply for a visa in a particular category than there are visas available for that month. Retrogression happens when the annual limit for the category or country has been exhausted or is expected to run out soon.

Yes, filing dates can retrogress too.

  1. Will the priority dates for the EB categories retrogress in November?

At this time, we cannot speculate about the progression of the priority dates in November, the Department of State has published that there will be “rapid movement” for EB-1,2 &3 categories for China and India in the next three months. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html

Application and Supporting Documents:

  1. What application forms am I required to file?

Your adjustment of status (AOS) application should be filed with the following forms:

Form I-485 Application To Register Permanent Residence or Adjust Status
Form I-485 Supplement J Confirmation of Bona Fide Job Offer
Form I-765 Employment Authorization Document (EAD)
Form I-131 Advance Parole
Form I-944 Declaration of Self Sufficiency
Form I-693 (can be submitted later) Sealed Medical Examination of Aliens Seeking Adjustment of  Status by Civil Surgeon (can be submitted at a later time)
Form G-28 Notice of Appearance for the attorney or representative

 

  1. Do I have to file Form I-765 (EAD) and I-131 (Advance Parole)?

The I-765 and I-131 are not required, but since they are interim benefits that will give you the eligibility to be employed and travel respectively while your I-485 is pending, you should apply for those benefits. Furthermore, USCIS is currently processing them as a courtesy without any additional fee. Hence it will be prudent to apply for those benefits as well.

  1. What is the I-485 Supplement J and do I need to submit it?

The I-485 Supplement J confirms that you have a bona fide job offer. Both you and your employer have to fill out this form. The employer can be represented by different legal counsel than you.

If you are not concurrently filing an I-140, then you must file the Form I-485 Supplement J, Confirmation of Bona Fide Job Offer.

This form is not required, if you are filing a downgrade from EB-2 to EB-3 since your employer will be filing the I-140 petition.

  1. Do I have to submit my Sealed Medical Examination (I-693) when I file?

You are NOT required to submit Form I-693 at the time you file your adjustment application, but may do so if you wish. Because of the time-limited validity of Form I-693, you may choose to submit your Form I-693 in response to a Request For Evidence (RFE) after you file your Form I-485. You may also submit Form I-693 in person at an interview in a USCIS field office, if an interview is required. By waiting to submit Form I-693, you may avoid having to repeat the immigration medical examination.

Medical Examinations are considered valid for up to two years and are only valid for submission within 60 days of completion.

Only a civil surgeon can do the Medical Examination and it must be sealed for submission. You can locate a civil surgeon using the USCIS locator tool.  You should bring your vaccination record if available. If you do not have one, the civil surgeon will recommend the course of action to take.

  1. What are the required documents for filing the I-485?

Our checklist containing the required documents can be viewed here.

  1. Is there any specific guidance relating to the civil documents that need to be submitted?

Yes, depending on your country of chargeability, specific guidelines apply. You can review the document requirements based on your country of chargeability in the Department of State’s website here.

Public Charge

  1. What is the Public Charge Questionnaire? Why should I file it?

The Public Charge questionnaire is the Form I-944, Declaration of Self Sufficiency. You are required to submit this form with supporting evidence to show that you will not become a public charge (financial burden) to the US government. The Public Charge Rule went into effect on Feb 24, 2020 and was subsequently challenged in the courts. On September 11, 2020, the Federal Court confirmed that the Public Charge Rule applies thereby mandating submission of I-944 and supporting documents. See USCIS publication here.

You can see our checklist for the I-944 supporting documents here.

  1. What are the required documents for the Public Charge Questionnaire, Form I-944?

Our checklist for I-944 supporting documents can be viewed here.

Civil Documents for India

Below are some questions that specifically apply to India:

  1. I was born in India and my birth certificate does not list my name on it, what can I do?

If your name is unavailable on your Birth certificate, you can provide secondary evidence – high school records and affidavits from parents or individuals with personal knowledge of birth can be submitted. See guidance here. If you have an Aadhar card, PAN card, or any other document (preferably contemporaneous with the birth) which has information about the birth and parentage on it, it can be submitted as secondary evidence.

  1. I was born in India prior to April 1, 1970, and do not have a birth certificate, what can I do?

If your date of birth is before April 1, 1970, it is presumed that you do not have a birth certificate. Therefore, we can submit any secondary evidence (high school records, affidavits, Aadhar card, PAN card) verifying your date & place of birth and your parentage (preferably contemporaneous with your birth). Note that, despite the Department of State’s guidance, the USCIS sometimes issues RFEs requesting NABC even for births prior to 1970.

  1. I was born in India prior to April 1, 1970, and do not have a birth certificate, what can I do?

If your date of birth is after April 1, 1970, you have to submit a non-availability of birth certificate (NABC). Additionally, as secondary evidence, high school records and affidavits from parents or individuals with personal knowledge of your birth can be submitted. See guidance here. Other documents that are typically submitted by Indian born nationals include an Aadhar card, PAN card or any other document (contemporaneous with your birth) that verify your birth and your parentage.

It is also recommended that you re-register your birth with the government body of your birthplace to obtain a new birth certificate. While it is not required you obtain this document prior to filing the AOS application, it will be helpful should a Request for Evidence (RFE) be issued.

FAQS: EB-2 to EB-3 Downgrades – October Visa Bulletin 2020

  1. I have an I-140 approved in the EB-2 category, but my priority date is not current under the EB-2 category but is current in the EB-3 category. Can I downgrade my EB-2 I-140 petition to the EB-3 category and take the benefit of the priority date under the EB-3 category?

Downgrading with the same employer: You are able to downgrade an I-140 petition to the EB-3 category with the same employer if you meet the requirements for the EB-3 position. This is because even if the employer’s requirements meet the standard for EB-2, those requirements can also be met at the EB-3 level, which is why you are able to do the downgrade.

Please note that filing a new I-140 petition allows the USCIS to look at the previous filing, including PERM recruitment, education credentials and requirements, and the Petitioner’s ability to pay. See FAQ #3 below.

Downgrading with a new employer: If you have your I-140 petition under the EB-2 category approved by your prior employer(s), you’ll need to have a currently valid certified PERM filed by your current employer. In this scenario, you are able to file your EB-3 downgrade through your current employer and concurrently file your I-485.

To take advantage of Dates for Filing chart for the October Visa Bulletin, you can concurrently file the I-140 and the I-485 together. This will allow you to receive interim benefits of EAD/AP while your adjustment application is pending.

  1. Should my I-140 under EB-3 category be approved in order for my concurrently filed I-485 to be approved?

While you can apply for adjustment of status concurrently with an I-140 petition requesting a downgrade from EB-2 to EB-3, the I-140 downgrade petition must be approved for the adjustment of status application (I-485) can be approved.

  1. What does the USCIS evaluate when I file my I-140 downgrade petition?

Filing a new I-140 petition allows the USCIS to look at the previous EB-2 I-140 petition filing, including PERM recruitment, education credentials and requirements, and the Petitioner’s ability to pay. Our attorneys will review your credentials to ensure that you meet the EB-3 requirements.

It is important to note that the ability to pay analysis may be slightly more complex with a downgrade petition. Your employer may have previously established that it had the ability to pay at the time of the initial I-140 filing several years ago. With the EB-2 downgrade filing, the company will need to establish its ability to pay the proffered salary again. As the USCIS has not reviewed the company’s ability to pay since the previous filing, the adjudicating officer may inquire and request supporting documentation  about the company’s ability to pay for every tax year subsequent to the initial I-140 filing.

  1. Can I file my I-140 downgrade petition in premium processing?

USCIS has indicated that it will not accept premium processing for I-140 petitions that do not include the original PERM. As an EB-2 downgrade to EB-3 will only include a copy of the PERM, it is likely that USCIS will not accept premium processing filed concurrently with these filings and may result in a rejection of the full petition filing.

However, we are aware of instances where practitioners have had premium processing requests accepted with concurrent downgrade filings. This includes an instance where the original PERM Labor Certification that was used with the EB-2 I-140 filing was adjudicated at the same processing center where the EB-3 I-140 will be filed.

As there is a risk of rejection with a concurrent premium processing request, we recommend filing the downgrade EB-3 I-140 petition and I-485 application concurrently without the premium processing request and then upgrade the I-140 to be premium processed once the I-140 petition has been accepted and receipted in by USCIS. This way you avoid the risk of rejection of the entire I-140+I-485 package should the premium process application be rejected by USCIS.

CSPA Considerations – As discussed in the CSPA section above, the CSPA allows for minor children that may age out during the green card process to subtract the number of days that the I-140 was pending from the child’s biological age, at the time that the Immigrant Visa became available, in order to provide them with a new “immigration age” that may allow them to adjust status without “aging out.” For persons facing this issue, regular processing over premium processing is strongly advised to ensure that the minor has the maximum amount of I-140 days pending for this analysis.

  1. If USCIS does not accept the premium processing application, will they reject the I-140 and I-485? Does that mean I cannot refile my I-485?

Yes, it is possible that the entire I-140+I-485 package may be rejected and returned. This can be problematic as it can take several weeks or longer for a petition to be returned after filing. You may refile the case again, but your priority date must be current on the date of the refiling.

  1. If I downgrade my I-140 to EB-3 category, will my previously approved EB-2 I-140 become invalidated?

This depends on how your I-140 downgrade petition is filed. When you file the I-140 EB-2 downgrade petition as a new petition, it allows for the EB-2 I-140 petition approval to stand without issue.

However, if your I-140 EB-2 downgrade petition is filed as amendment, then another I-140 petition will be required to upgrade you back to the EB-2 category.

Ultimately, your priority date is preserved either way. We recommend filing downgrades as new petitions; however, we note that USCIS has from time to time rejected petitions that are not filed as amendments.

  1. I have an I-140 approved in the EB-2 category. If I now file my I-485 concurrently with my I-140 downgrade petition, and later the EB-3 retrogresses in comparison with the EB-2, am I going to lose my queue in the EB-2 category?

When you downgrade your I-140 petition to the EB-3 category, your I-485 will also be adjudicated for that category. However, if the EB-2 category later advances after you file your I-485, and your EB-3 petition was filed as a new petition (see FAQ #5 above), you may be able to request the USCIS to adjudicate your I-485 with the previous EB-2 petition. This process is called interfiling and is available under certain circumstances and at the discretion of the adjudicating officer. See USCIS policy manual- https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-8#footnotelink-2

  1. If after I file my EB-3 downgrade petition concurrently with my I-485 application, the priority date for EB-2 category progresses, can I then use my EB-2 I-140 for my pending I-485?

If your priority date under the EB-2 category advances after you file your I-485, you will be able to request USCIS to substitute (interfile) your EB-3 I-140 with the approved EB-2 I-140 under certain circumstances where USCIS has discretionary authority. A new I-485 filing is not required in this scenario. See FAQ #6; See Also, USCIS Policy Manual – https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-8#footnotelink-2

AOS Intake Form

Full Name

Email Addresss*

Phone Number

Current Status

Country of Chargeability

Employment-Based Preference Category (EB-1, EB-2, EB-3, etc.)

Priority Date

Full Name of Current Employer (Optional)

I-140 Approval with Current Employer? If no, please list full name of I-140 petitioning employer (Optional)

Do you have any dependents that will be filing with you? If yes, please list full name(s) and relationship to you

Comments (please provide any additional details as you see fit)

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

General

2020 October Visa Bulletin and Employment-Based (EB) Adjustment of Status

The 2020 October Visa Bulletin published by the Department of State (DOS) resulted in big moves, advancing most EB categories forward across all nationalities. The United States Citizenship and Immigration Service (USCIS) has confirmed that it will use the Dates for Filing table from the Visa Bulletin to determine if a person qualifies to file for adjustment of status.

If you are looking to file your adjustment of status application or downgrade your EB-2 immigrant petition to EB-3 concurrently with your adjustment of status application, please see below for our Zoom information sessions and how to initiate the process with MPLG.

The Dates for Filing Chart

Please see the October 2020 Dates for Filing Chart below:

If your priority date falls on or before the above-listed date for your employment-based (EB) category, you are able to take the next step towards the green card: filing the adjustment of status application.

Applications for Adjustment of Status based upon the October Visa Bulletin will be accepted beginning on October 1, 2020, through October 30, 2020.[1] Please be aware that any application filed within the month of October will be deemed timely for purposes of filing for adjustment of status pursuant to the October Bulletin. There is no added benefit to filing earlier than later in the month.

EB-2 downgrades to EB-3

Preference category downgrades are possible during this time as EB-3 advanced forward past EB-2 for the month of October. This option may be of interest for certain foreign nationals seeking independent work authorization and advance parole.  

FAQs

Please review the FAQs tab where many of your immediate questions may be answered. You can also download the FAQs from the right navigation bar if you are viewing this page on a computer; or at the bottom of this page if you are viewing this page from a smart phone. 

Expedited Intake

In lieu of phone consultations, we have streamlined the initiation process through our quick online intake. Please click on the AOS Intake tab at the top navigation and complete the short intake. Our team will respond to your inquiry within the same business day on the next steps.

MPLG Zoom Information Sessions

The MPLG team will be hosting two Zoom information sessions on employment-based adjustment filings and I-140 downgrades. You may register for a Zoom session at the following links:

Visa Bulletin Information Session, October 7, 2020

Visa Bulletin Information Session, October 14, 2020

Fee Schedules

Please see our two fee schedules on the right-hand sidebar:

  • Employment-Based Adjustment of Status Application Fees. This fee schedule is for the adjustment of status filing only and includes fees for the principal, applicants, and dependents.
  • EB-2 Downgrade I-140 Petition Fees. This fee schedule is for the I-140 petition only. Adjustment of Status application fee schedule will also apply for concurrent filings. Please note that if MPLG will be representing the company for the I-140, we will need to enter into a joint representation of both the petitioning company and the Beneficiary.

Filing with MPLG

Once a case is confirmed and a legal services agreement is executed, MPLG will take the following steps to support your filing:

Initiation and Questionnaire: MPLG will send initiation emails with document checklists and required questionnaires through INSZoom. Questionnaires must be completed for processing.

INSZoom: For seamless information and document collection, MPLG uses the immigration management portal INSZoom. Applicants will receive credentials to INSZoom upon initiation of the case.

Zoom Information Session: MPLG will be hosting bi-weekly information sessions throughout the month of October on the initiation process and how to complete questionnaires and upload your documents.

Form Signatures: USCIS has continued its flexibility during the COVID pandemic in accepting scanned signatures. MPLG will be collecting scans of signature pages only for filing.

Photos and Medical Examinations: MPLG will provide detailed instructions in the initiation email on where these items must be sent. We strongly advise sending these items via certified overnight mail or FedEx.

Final Review Prior to Filing: MPLG will send your full application to you for final review and approval before filing your case.

A note on medical examinations:

You are NOT required to submit Form I-693 at the time you file your adjustment application but may do so if you wish. Because of the time-limited validity of Form I-693, you may choose to submit your Form I-693 after you file your Form I-485. You may also submit Form I-693 in person at an interview in a USCIS field office if an interview is required. By waiting to submit Form I-693, you may avoid having to repeat the immigration medical examination.

Medical Examinations are considered valid for up to two years and are only valid for submission within 60 days of completion.

Timeline

In order to best meet your immigration needs, please see below for filing timelines:

 

Action Items Required Timeline

(We encourage you to provide details sooner)

Legal Services Agreement (executed) and payment of ½ of fees September 28, 2020-October 20, 2020
Document collection and signature pages September 28, 2020-October 26, 2020
Payment of 2nd ½ of fees and filing fees (must be received within the timeframe) September 28, 2020-October 26, 2020


October 20th Cut-Off: 
For cases initiated after October 20th, our law firm cannot guarantee timely filing pursuant to the October Visa Bulletin.

All required documents must be received no later than October 26th; after this date, our law firm cannot guarantee timely filing pursuant to the October Visa Bulletin.

How to Get Started with MPLG

Please complete the AOS intake sheet online which you can access at the tab at the top of this web page. Upon confirmation, our team will initiate the case. 

We look forward to serving you and filing your adjustment of status application!

[1] Please note that October 31st, 2020 falls on a Saturday. USCIS does not accept filings on Saturdays, so the last day for a case to be considered timely received and pursuant to the October Visa Bulletin is Friday, October 30th, 2020.

General FAQs

FAQS: Employment-Based (EB) – Adjustment of Status (AOS) – October Visa Bulletin 2020

On Thursday September 24th, the October Visa Bulletin was published by USCIS, advancing most EB categories forward across all nationalities. Please see the Dates for Filing table from the Visa Bulletin below:

This rapid movement in the priority dates (PD) have raised several questions. We address some of those below:

General Questions:

  1. Have the priority dates for EB-1, EB-2 and EB-3 have progressed in the “Filing Dates” chart. If so, does this mean I can file my I-485 (green card) application?

Yes, the priority date for the first three Employment Based categories (EB-1, EB-2 & EB-3) have progressed for the month of October from September 2020. In October the filing dates for EB-1, EB-2 and EB-3 categories have progressed, specifically for China and India.

For India:

EB-1 preference category: From July 1, 2018 to September 1, 2020

EB-2 preference category: From Aug 15, 2009 to May 15, 2011

EB-3 preference category: From February 1, 2010 to January 1, 2015

For China:

EB-1 preference category: From July 1, 2018 to September 1, 2020

EB-2 preference category: From Aug 1, 2016 to Oct 1, 2016

EB-3 preference category: From May 1, 2017 to June 1, 2018

If your priority date is current, then depending on the category (EB-1, EB-2 or EB-3) you are eligible under, you can file your I-485 application.

For example: If your country of chargeability is India and your PD is May 15, 2011 or earlier (under EB-2) or is January 1, 2015 or earlier (under EB-3), then you can file your I-485 application.

  1. What are Final Action Dates and Filing Dates?

Every month, USCIS publishes a visa bulletin. If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, USCIS will state on its website that an applicant may use the Dates for Filing chart. Otherwise, USCIS will indicate on its website that an applicant must use the Final Action Dates chart to determine when one may file their adjustment of status application.

If your priority date is current with the Final Action Dates in the September Visa Bulletin, then it means visa numbers with your priority date or earlier have become available for the preference category and that USCIS is ready to adjudicate your green card application.

If your priority date is current with the Filing Dates in the October Visa Bulletin, then it means that USCIS is ready to accept your I-485 application even though visa numbers are not yet available.

NOTE: Even though the Filing Dates are current for your case and you are able to file your I-485 application, since the Final Action Dates may still not be current, it could take a few years before you can actually receive your permanent resident status. Your priority date must be current with the Final Action Dates in order for USCIS to grant permanent residence (i.e. the Green Card).

  1. How soon should I file my I-485 application?

The Visa Bulletin is issued on a monthly basis and sets forth the availability for an immigrant visa per country for the entire month. Therefore, if your priority date for filing became current in October, you can file during the entire month of October. It does not matter whether you file on October 1st or the last day of October. Since October 31st lands on a Saturday, we recommend that you file so that your case reaches USCIS anytime between October 1 through October 30th.

  1. What are the benefits of filing an I-485 application?

The I-485 application allows for applicants to apply for employment authorization and permission to travel as interim benefits while the application is pending. It also allows principal applicants to change employers pursuant to INA Sec. 204(j) after the I-485 application has been pending for 180 days. Please note that new positions must be in a same or similar occupation with an employer for the I-485 application to continue to be valid.

  1. I am outside the US now; can I file my I-485?

Unfortunately, you will not be able to file your I-485, if you are outside the US at the time of filing. You must be in the US to adjust status to permanent resident. That includes eligible family members as well.

  1. Can I travel after I file my I-485?

Yes, BUT you must either have Advance Parole (discussed in the next FAQ section) or be maintaining your H or L status and have a valid visa. If you are not on an H or L, and do not have advance parole, and you still travel internationally, that travel will be deemed an abandonment of your adjustment of status application. This equally applies to derivative family members (spouse, children).

  1. Can I change employers after I file my I-485 application?

If you have submitted an application for adjustment of status based upon an approved I-140 visa petition approved under one of the Employment-Based preference categories, you may change employers pursuant to INA Section 204(j) if the following conditions are met:

  • Your adjustment of status application has been pending for at least 180 days; and
  • The new position is in the same or similar occupation as the job offer listed in the approved I-140 petition.

Your new employer will need to confirm that a bonafide job offer exists using Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j).

  1. Must I be in valid status when I file my I-485 application?

You must be in a valid non-immigrant status in the U.S. to file the I-485 application.

Please note that INA Sec. 245(k) does provide an exception for persons who are out of status if they have not accrued 180 days or more of unlawful presence. Please consult with an attorney for more details on this analysis.

  1. Must I maintain my non-immigrant status while my I-485 application is pending?

Once your I-485 application is confirmed as received and receipted, you are no longer required to maintain an underlying status. This is because the timely filing of an adjustment of status application allows for you to remain in the U.S. while the application is pending without accruing unlawful presence. In addition, the concurrent filing of employment authorization and advance parole applications will allow you to work and travel. Please note that these interim benefits can take time to be issued, which can result in breaks in employment authorization due to uncertain processing times.

MPLG advises that you maintain an underlying status until the green card is issued wherever possible. if for any reason your I-485 application is denied, you will have a status to fall back on.

Family Members and Child Status Protection Act (CSPA)

  1. Can any of my family members apply for their I-485 application with me?

Yes, your immediate family members – spouse and unmarried children under 21 – are eligible to file the I-485 application as derivative applicants. They are required to submit their own separate applications and filing fees, though you can mail them together to USCIS. Children who are older than 21 years old may still qualify under the Child Status Protection Act (CSPA). See FAQs under CSPA.

Parents, siblings, and other family members do not qualify as derivatives eligible to apply for the Green Card.

  1. What happens to my child if they are close to aging out (i.e. 21 years old), or will age out prior to the Final Action Date becoming current for my priority date?

The Child Status Protection Act (CSPA) is intended to provide some relief for children to prevent them from “aging out”. The CSPA allows the child to subtract the number of days that the I-140 was pending from the child’s biological age, at the time that the Immigrant Visa became available, in order to provide them with a new “immigration age”.

Further, if the child is under 21 using the adjusted CSPA on the date the visa becomes available, s/he will have 1 year to “seek to acquire” LPR status. If they satisfy that requirement, they will preserve their derivative status until they immigrate or adjust status, provided they remain unmarried. This age is frozen, even if the priority date later retrogresses.

For example, if the I-140 was pending for 15 days, then 15 days would be subtracted from the child’s age when the priority date for final action became current, and the child has 1 year from that date to file for their Green Card either through Adjustment of Status or through consular processing of an Immigrant Visa.

Below is the formula for determining eligibility:

“CSPA age is calculated by subtracting the number of days your petition was pending (pending time) from your age on the date an immigrant visa becomes available to you (age at time of visa availability).”

  • The formula for calculating CSPA age is as follows:

Age at Time of Visa Availability – Pending Time = CSPA Age

  • Pending Time

The length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date. The formula determining the length of time the petition was pending is as follows:

Approval Date – Filing Date = Pending Time

  • The date the visa is considered available is the later of these two dates:
  • The date the petition was approved; or
  • The first day of the month of the Department of State Visa Bulletinthat indicates that a visa is available for you in the Final Action Dates chart.

Even if your priority date is current under the Filing Dates, unless your priority date is current under the Final Action Dates, before your child ages out, s/he may not be able to benefit from the AOS application.

Therefore, you should make arrangements to change your child who will age out to a different non-immigrant category to ensure s/he does not fall out of status. This change of status to nonimmigrant status will become even more important should you not continue to maintain your nonimmigrant status (H1B/L-1).

However, if in the month of October, your child has now not aged out yet, it may be prudent to file your child’s AOS application as well and seek the interim benefits of EAD and AP until they age out.

Employment Authorization (EAD) and Advance Parole

  1. Can I file applications for Employment Authorization Document (EAD) and Advance Parole (AP)?

Yes, you can. The Employment Authorization Document (EAD, Form I-765) and Advance Parole (AP, Form I-131) are “interim benefits” that you can apply for while your Adjustment of Status (I-485) case is pending.

We typically recommend that you maintain your underlying non-immigrant status rather than using the EAD / AP; but we also recommend filing for the EAD and AP as a back-up option in the event you are unable to maintain your non-immigrant status.

  1. Are there additional fees for the Employment Authorization Document (EAD) and Advance Parole (AP)?

Currently, there are no additional filing fees to apply for these benefits. However, USCIS has issued a proposed rule to charge filing fees for these applications, but that rule is currently enjoined by a federal court. So, for now, there are no additional fees.

  1. How long is the EAD/AP card valid?

The EAD is valid for either 1 or 2 years. Typically, it is valid for 2 years if the priority date is not current. You can keep extending the EAD card as long as your I-485 (GC) is pending decision with the USCIS.

The AP and EAD are issued as combination card and so the validity on the EAD is typically the validity on the AP as well.

H-4 Applicants

  1. I am in H-4 status and have an EAD with my employer. Should I convert to H-1B to show maintenance of status?

If you are maintaining your H-4 status, there is no requirement to convert to H-1B to show maintenance of status.

  1. I am in H-4 status and working with my H-4 EAD. My I-140 was filed by my employer and my priority date is current. Can I file my I-485 using the I-140 approval?

Yes, you can, as long as your employer can verify that a bona fide job offer (on the I-140) is still available by filing the I-485 supplement J.

Retrogression

  1. What is retrogression? Can the Filing Dates Retrogress?

Retrogression is when a priority date that is current in a month may not be current in the subsequent month or it may even move backwards to an earlier date. This occurs when more people apply for a visa in a particular category than there are visas available for that month. Retrogression happens when the annual limit for the category or country has been exhausted or is expected to run out soon.

Yes, filing dates can retrogress too.

  1. Will the priority dates for the EB categories retrogress in November?

At this time, we cannot speculate about the progression of the priority dates in November, the Department of State has published that there will be “rapid movement” for EB-1,2 &3 categories for China and India in the next three months. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html

Application and Supporting Documents:

  1. What application forms am I required to file?

Your adjustment of status (AOS) application should be filed with the following forms:

Form I-485 Application To Register Permanent Residence or Adjust Status
Form I-485 Supplement J Confirmation of Bona Fide Job Offer
Form I-765 Employment Authorization Document (EAD)
Form I-131 Advance Parole
Form I-944 Declaration of Self Sufficiency
Form I-693 (can be submitted later) Sealed Medical Examination of Aliens Seeking Adjustment of  Status by Civil Surgeon (can be submitted at a later time)
Form G-28 Notice of Appearance for the attorney or representative

 

  1. Do I have to file Form I-765 (EAD) and I-131 (Advance Parole)?

The I-765 and I-131 are not required, but since they are interim benefits that will give you the eligibility to be employed and travel respectively while your I-485 is pending, you should apply for those benefits. Furthermore, USCIS is currently processing them as a courtesy without any additional fee. Hence it will be prudent to apply for those benefits as well.

  1. What is the I-485 Supplement J and do I need to submit it?

The I-485 Supplement J confirms that you have a bona fide job offer. Both you and your employer have to fill out this form. The employer can be represented by different legal counsel than you.

If you are not concurrently filing an I-140, then you must file the Form I-485 Supplement J, Confirmation of Bona Fide Job Offer.

This form is not required, if you are filing a downgrade from EB-2 to EB-3 since your employer will be filing the I-140 petition.

  1. Do I have to submit my Sealed Medical Examination (I-693) when I file?

You are NOT required to submit Form I-693 at the time you file your adjustment application, but may do so if you wish. Because of the time-limited validity of Form I-693, you may choose to submit your Form I-693 in response to a Request For Evidence (RFE) after you file your Form I-485. You may also submit Form I-693 in person at an interview in a USCIS field office, if an interview is required. By waiting to submit Form I-693, you may avoid having to repeat the immigration medical examination.

Medical Examinations are considered valid for up to two years and are only valid for submission within 60 days of completion.

Only a civil surgeon can do the Medical Examination and it must be sealed for submission. You can locate a civil surgeon using the USCIS locator tool.  You should bring your vaccination record if available. If you do not have one, the civil surgeon will recommend the course of action to take.

  1. What are the required documents for filing the I-485?

Our checklist containing the required documents can be viewed here.

  1. Is there any specific guidance relating to the civil documents that need to be submitted?

Yes, depending on your country of chargeability, specific guidelines apply. You can review the document requirements based on your country of chargeability in the Department of State’s website here.

Public Charge

  1. What is the Public Charge Questionnaire? Why should I file it?

The Public Charge questionnaire is the Form I-944, Declaration of Self Sufficiency. You are required to submit this form with supporting evidence to show that you will not become a public charge (financial burden) to the US government. The Public Charge Rule went into effect on Feb 24, 2020 and was subsequently challenged in the courts. On September 11, 2020, the Federal Court confirmed that the Public Charge Rule applies thereby mandating submission of I-944 and supporting documents. See USCIS publication here.

You can see our checklist for the I-944 supporting documents here.

  1. What are the required documents for the Public Charge Questionnaire, Form I-944?

Our checklist for I-944 supporting documents can be viewed here.

Civil Documents for India

Below are some questions that specifically apply to India:

  1. I was born in India and my birth certificate does not list my name on it, what can I do?

If your name is unavailable on your Birth certificate, you can provide secondary evidence – high school records and affidavits from parents or individuals with personal knowledge of birth can be submitted. See guidance here. If you have an Aadhar card, PAN card, or any other document (preferably contemporaneous with the birth) which has information about the birth and parentage on it, it can be submitted as secondary evidence.

  1. I was born in India prior to April 1, 1970, and do not have a birth certificate, what can I do?

If your date of birth is before April 1, 1970, it is presumed that you do not have a birth certificate. Therefore, we can submit any secondary evidence (high school records, affidavits, Aadhar card, PAN card) verifying your date & place of birth and your parentage (preferably contemporaneous with your birth). Note that, despite the Department of State’s guidance, the USCIS sometimes issues RFEs requesting NABC even for births prior to 1970.

  1. I was born in India prior to April 1, 1970, and do not have a birth certificate, what can I do?

If your date of birth is after April 1, 1970, you have to submit a non-availability of birth certificate (NABC). Additionally, as secondary evidence, high school records and affidavits from parents or individuals with personal knowledge of your birth can be submitted. See guidance here. Other documents that are typically submitted by Indian born nationals include an Aadhar card, PAN card or any other document (contemporaneous with your birth) that verify your birth and your parentage.

It is also recommended that you re-register your birth with the government body of your birthplace to obtain a new birth certificate. While it is not required you obtain this document prior to filing the AOS application, it will be helpful should a Request for Evidence (RFE) be issued.

EB-2 Downgrade FAQs

FAQS: EB-2 to EB-3 Downgrades – October Visa Bulletin 2020

  1. I have an I-140 approved in the EB-2 category, but my priority date is not current under the EB-2 category but is current in the EB-3 category. Can I downgrade my EB-2 I-140 petition to the EB-3 category and take the benefit of the priority date under the EB-3 category?

Downgrading with the same employer: You are able to downgrade an I-140 petition to the EB-3 category with the same employer if you meet the requirements for the EB-3 position. This is because even if the employer’s requirements meet the standard for EB-2, those requirements can also be met at the EB-3 level, which is why you are able to do the downgrade.

Please note that filing a new I-140 petition allows the USCIS to look at the previous filing, including PERM recruitment, education credentials and requirements, and the Petitioner’s ability to pay. See FAQ #3 below.

Downgrading with a new employer: If you have your I-140 petition under the EB-2 category approved by your prior employer(s), you’ll need to have a currently valid certified PERM filed by your current employer. In this scenario, you are able to file your EB-3 downgrade through your current employer and concurrently file your I-485.

To take advantage of Dates for Filing chart for the October Visa Bulletin, you can concurrently file the I-140 and the I-485 together. This will allow you to receive interim benefits of EAD/AP while your adjustment application is pending.

  1. Should my I-140 under EB-3 category be approved in order for my concurrently filed I-485 to be approved?

While you can apply for adjustment of status concurrently with an I-140 petition requesting a downgrade from EB-2 to EB-3, the I-140 downgrade petition must be approved for the adjustment of status application (I-485) can be approved.

  1. What does the USCIS evaluate when I file my I-140 downgrade petition?

Filing a new I-140 petition allows the USCIS to look at the previous EB-2 I-140 petition filing, including PERM recruitment, education credentials and requirements, and the Petitioner’s ability to pay. Our attorneys will review your credentials to ensure that you meet the EB-3 requirements.

It is important to note that the ability to pay analysis may be slightly more complex with a downgrade petition. Your employer may have previously established that it had the ability to pay at the time of the initial I-140 filing several years ago. With the EB-2 downgrade filing, the company will need to establish its ability to pay the proffered salary again. As the USCIS has not reviewed the company’s ability to pay since the previous filing, the adjudicating officer may inquire and request supporting documentation  about the company’s ability to pay for every tax year subsequent to the initial I-140 filing.

  1. Can I file my I-140 downgrade petition in premium processing?

USCIS has indicated that it will not accept premium processing for I-140 petitions that do not include the original PERM. As an EB-2 downgrade to EB-3 will only include a copy of the PERM, it is likely that USCIS will not accept premium processing filed concurrently with these filings and may result in a rejection of the full petition filing.

However, we are aware of instances where practitioners have had premium processing requests accepted with concurrent downgrade filings. This includes an instance where the original PERM Labor Certification that was used with the EB-2 I-140 filing was adjudicated at the same processing center where the EB-3 I-140 will be filed.

As there is a risk of rejection with a concurrent premium processing request, we recommend filing the downgrade EB-3 I-140 petition and I-485 application concurrently without the premium processing request and then upgrade the I-140 to be premium processed once the I-140 petition has been accepted and receipted in by USCIS. This way you avoid the risk of rejection of the entire I-140+I-485 package should the premium process application be rejected by USCIS.

CSPA Considerations – As discussed in the CSPA section above, the CSPA allows for minor children that may age out during the green card process to subtract the number of days that the I-140 was pending from the child’s biological age, at the time that the Immigrant Visa became available, in order to provide them with a new “immigration age” that may allow them to adjust status without “aging out.” For persons facing this issue, regular processing over premium processing is strongly advised to ensure that the minor has the maximum amount of I-140 days pending for this analysis.

  1. If USCIS does not accept the premium processing application, will they reject the I-140 and I-485? Does that mean I cannot refile my I-485?

Yes, it is possible that the entire I-140+I-485 package may be rejected and returned. This can be problematic as it can take several weeks or longer for a petition to be returned after filing. You may refile the case again, but your priority date must be current on the date of the refiling.

  1. If I downgrade my I-140 to EB-3 category, will my previously approved EB-2 I-140 become invalidated?

This depends on how your I-140 downgrade petition is filed. When you file the I-140 EB-2 downgrade petition as a new petition, it allows for the EB-2 I-140 petition approval to stand without issue.

However, if your I-140 EB-2 downgrade petition is filed as amendment, then another I-140 petition will be required to upgrade you back to the EB-2 category.

Ultimately, your priority date is preserved either way. We recommend filing downgrades as new petitions; however, we note that USCIS has from time to time rejected petitions that are not filed as amendments.

  1. I have an I-140 approved in the EB-2 category. If I now file my I-485 concurrently with my I-140 downgrade petition, and later the EB-3 retrogresses in comparison with the EB-2, am I going to lose my queue in the EB-2 category?

When you downgrade your I-140 petition to the EB-3 category, your I-485 will also be adjudicated for that category. However, if the EB-2 category later advances after you file your I-485, and your EB-3 petition was filed as a new petition (see FAQ #5 above), you may be able to request the USCIS to adjudicate your I-485 with the previous EB-2 petition. This process is called interfiling and is available under certain circumstances and at the discretion of the adjudicating officer. See USCIS policy manual- https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-8#footnotelink-2

  1. If after I file my EB-3 downgrade petition concurrently with my I-485 application, the priority date for EB-2 category progresses, can I then use my EB-2 I-140 for my pending I-485?

If your priority date under the EB-2 category advances after you file your I-485, you will be able to request USCIS to substitute (interfile) your EB-3 I-140 with the approved EB-2 I-140 under certain circumstances where USCIS has discretionary authority. A new I-485 filing is not required in this scenario. See FAQ #6; See Also, USCIS Policy Manual – https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-8#footnotelink-2

AOS Intake Sheet

AOS Intake Form

Full Name

Email Addresss*

Phone Number

Current Status

Country of Chargeability

Employment-Based Preference Category (EB-1, EB-2, EB-3, etc.)

Priority Date

Full Name of Current Employer (Optional)

I-140 Approval with Current Employer? If no, please list full name of I-140 petitioning employer (Optional)

Do you have any dependents that will be filing with you? If yes, please list full name(s) and relationship to you

Comments (please provide any additional details as you see fit)

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

EB AOS Fee Schedule October 2020

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EB Downgrade Fee Schedule October 2020

EB-Downgrade-Fee-Schedule-October-2020

FAQs - AOS- 2020 October Visa Bulletin

FAQs - AOS- 2020 October Visa Bulletin_10.7.2020_Page_01