Retrogression Clarification : Concurrent Filing Possible for Some
Posted Dec 24, 2004

With last week’s announcement regarding the retrogression of Employment-Based 3rd Preference (EB3) priority dates for people from India, mainland China, and the Philippines, we are receiving many questions from our clients, members of the MurthyForum, and participants of the MurthyChat. The basic issues regarding retrogression are discussed in our September 24, 2004 MurthyBulletin article, Priority Dates May Retrogress. The announcement of the retrogression is the subject of our December 10, 2004 NewsFlash, Employment Visa Numbers Retrogress.

Concurrent Filing Continues for EB1/EB2 and Many EB3 Cases

There appears to be a common misunderstanding that concurrent filing has ended. At The Law Office of Sheela Murthy, P.C., we certainly can see why this is confusing. The basic explanation is that concurrent filing has not ended, but many people whose priority dates have retrogressed will not be eligible to use it.

Having heard that it will not be possible to concurrently file their I-140/I-485s starting January 1, 2005, many individuals are mistaking the priority date retrogression for an end to concurrent filing. For those who have obtained Labor Certifications and expect to file their I-140 petitions in the EB3 category, it is true they will not be able to use concurrent filing. This is not, however, because the law has changed with respect to concurrent filing.

Retrogression is not the result of a change in the law. It is caused by a long-standing law limiting the numbers of immigrant visas available in certain family- and employment-based categories. Concurrent filing procedures are still in existence. Individuals with current priority dates can still file concurrently. This means that, as of January 1, 2005, concurrent processing is still possible for EB1s, EB2s, and EB3s who are not nationals of India, mainland China, or the Philippines; and those EB3s from India, mainland China, and the Philippines with priority dates that are current (i.e., those with priority dates before January 1, 2002).

While the concurrent processing procedures are still legally permitted, as a practical matter many EB3s from India, mainland China, and the Philippines, with priority dates on or after January 1, 2002, will not be able to file their I-140s and I-485s concurrently due to retrogression. As a result, these individuals will not be entitled to obtain either EADs or AP. The backlogged priority dates are preventing the use of concurrent filing for many, but have not changed the rules as to when it is possible to concurrently file.

I-485 Filing Possible after I-140 Filing or Approval

It is also important with respect to this matter to clarify is that, even once the I-140 is approved, the I-485 cannot be filed until the priority dates are current. On the other hand, if one’s priority date becomes current after filing the I-140 petition, s/he is able to file the I-485 with the EAD and AP using the I-140 receipt notice, even before the I-140 has been approved based on concurrent filing. We are not just going back to the days before concurrent filing, where the I-140s had to be filed and approved before the I-485 could be filed. Now, if a person files the I-140 following approval of a labor certification, that individual could possibly get an I-140 approval and still be unable to file the I-485 if the priority dates are not current. This depends upon the availability of a visa number, as reflected by the priority dates.

Maintain Separate Status until I-485 is Filed

We at The Law Office of Sheela Murthy remind MurthyDotCom and MurthyBulletin readers that having a labor certification or I-140 filed does not grant any status in the U.S. With retrogression, it is going to be necessary to maintain a separate nonimmigrant status, usually H1B (H-4) or L1A/B (L-2), until the I-485 can be filed with the EAD to allow one to work legally in the United States.

We will continue to clarify any confusion for MurthyDotCom and MurthyBulletin readers and will provide updates as retrogression continues to affect many aspects of the immigration process.

http://www.murthy.com/news/n_retcla.html