Labor Immigration Law

USCIS has released more information about the scope of the new rule which allows USCIS to issue 2-year EADs.

The rule becomes effective on June 30, 2008 and after this date, USCIS will issue 2-year EADs only to individuals who have filed petitions to become a lawful permanent resident (LPR) using Form I-485 and have requested an EAD but are unable to become LPR because a visa number is not currently available.  Upon renewal of EAD, USCIS will look at the visa bulletin and issue a 2-year replacement EAD only if a visa number is not currently available for the petitioner.

On the other hand, applicants who have filed I-485 and EAD applications and for whom there is a visa number immediately available would get only 1-year EAD document.  Applicants whose visa numbers have retrogressed since their I-485 was filed would get 2-year EADs.

USCIS is proposing to amend the regulations concerning the concurrent filing of employment-based I-140 and I-485 petitions as long as visa number is available to the alien beneficiary. The proposed rule seeks to amend the rule so that a worker applying for I-485 adjustment of status must be the beneficiary of an approved immigrant petition prior to the filing of the adjustment application.

The proposed rule is scheduled for publication in June with a 60-day comment period.

Reasons
We do not have reliable information at this point as to the rationale of this proposed rule change. It seems that USCIS may be trying to eliminate the backlog of I-140/I-485 applications which were filed in the summer of 2007 when there was a substantial forward visa movement. It has been suggested that USCIS may be trying to control the volume of filings should a dramatic forward movement, similar to the summer of 2007, occur in the future.

About the I-140/I-485 Concurrent Filing Procedure
The concurrent filing procedure was implemented in 2002 and it has become a very useful for aliens who qualify. The concurrent filing procedure permits an alien who has an I-140 filed to file a I-485 adjustment of status application and, as a result, take advantage of a number of benefits associated with pending I-485. A properly filed and pending I-485 opens eligibility for employment authorization documents (EAD) and advanced parole (AP) for the beneficiary and his or her immediate family. Also, having I-485 pending for certain period of time may open other benefits, such as job portability to similar job opportunities.

Consequences
As a result of the new rule, foreign employees would be impacted negatively in several important ways. First, they would be restricted in switching employers. Additionally, families of foreign employees would not be entitled to work authorization until later in the process, thus putting financial strain on some of the immigrant families. Finally, international travel may be impacted as fewer families would be entitled to AP earlier in the process.

It should be noted that it is not expected that the proposed rule will impact currently filed concurrent I-140/I-485. We will continue to monitor the situation and update our clients as we learn more.