The White House has appeared to have received the legal go ahead to proceed with implementing a proposal hinted at in the President’s executive action remarks in November 2014. One of the more popular proposals aimed at retaining skilled workers in the US is the creation of a “pre-registration” process that would allow those sitting in employment-based green card backlog lines to obtain a work authorization document continue working legally in the US while awaiting the green card. I’ve obtained a legal memorandum that I am trying to authenticate that lays out the proposal and its legal support.

Entitled “Authority to Modify Certain Procedures Related to Petitions for Employment-Based Immigrant Visa Petitions”, the document sets out the background for the proposal noting that in the Secretary Jeh Johnson’s November 20, 2014 memorandum, he was directing USCIS to consider “regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.”

The memorandum notes that the USCIS has a working group on I-140 Executive Action initiatives and that the memorandum provides a legal assessment of two proposals under consideration. The are the following:

  1. USCIS would amend its regulations regarding the revocation or continued validity of approved I-140 petitions in cases where an employer withdraws the petition or terminates its business. Current regulations make such a revocation by USCIS automatic. The new rule would consider these I-140 petitions to remain valid for a beneficiary when “certain criteria are met.”
  2. USCIS would issue a new rule providing employment authorization to beneficiaries (and their derivative spouses and children) of approved employment-based immigrant visa petitions.

The memorandum notes that the proposals ARE permissible as long as they are made through notice-and-comment rulemaking.

The memorandum notes as well that while I-140 beneficiaries would be able to change jobs without fear of losing their underlying immigrant visa petition, most beneficiaries would be unable to adjust status in the US since they would no longer hold non-immigrant status. Consular processing would generally be the route to permanent residency (which, the memorandum notes, may have the side benefit of deterring fraud or misuse of the program).

Regarding the legality of the proposals, the memorandum first cites to the DHS Secretary’s broad authority under INA Section 205 to establish the criteria for revoking the approval of any petition approved by him under the Immigration and Nationality Act. Thus, amending USCIS regulations to provide that an employer withdrawing or terminating its business will no longer automatically result in an I-140 revocation is permissible.

The memorandum also notes that the DHS Secretary has broad authority to approve employment authorization under INA Section 274A(h)(3) to various classes of immigrants and that adding the class of “beneficiaries of approved employment-based immigrant visa petitions (and their derivative dependents)” would be a permissible regulatory change.

The memorandum then notes that these changes would be consistent with prior congressional actions including the adjustment portability provisions of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

The I-140 revocation proposal envisions a system where approved I-140s continue to remain valid for the beneficiary despite the employer’s withdrawal of the petition or the termination of the business as long as 1) more than one year has passed since the approval of the petition and 2) the beneficiary has a job that is in the same or a similar occupational classification as the one in the I-140. This is very similar to the INA Section 204(j) provision for adjustment portability. The proposal would not alter other rules governing revocation such as those governing revocations for fraud or willful misrepresentation.

Regarding the second proposal on EADs, the new system would extend employment authorization to the beneficiaries of approved employment-based immigrant visa petitions regardless of whether they have filed their applications for adjustment of status. The memorandum doesn’t note whether this provision would be limited to I-140 petitions or would also include I-360 petitions for religious workers.

The memorandum concludes by re-stating that USCIS has the authority through notice-and-commenting rulemaking to make both of these changes.

Here’s what I don’t know –

  1. Who this memorandum was written by or directed to. It seemingly is intended for someone in a senior role vetting the implementation of the executive action proposals.
  2. The timing. The memorandum doesn’t mention whether drafting has begun or when a notice of proposed rulemaking may be released. The fact that rulemaking is needed means that we’ll be waiting many months – my guess is about a year – before we actually see this proposal take effect.
  3. Whether other proposals are still in the running including recapturing unused green cards from prior years or not counting derivatives in the green card quotas.
  4. Whether this document is even real. I received this six page document anonymously and while it is very detailed and written in a way that suggests a great deal of inside knowledge about what is happening at the agency, I can’t yet verify its authenticity.

Despite these uncertainties, I do believe those in employment-based green card category backlogs should view this document as very good news. Hopefully, the regulatory process will be fast-tracked and these proposals will become law sooner rather than later.

Original legal memorandum is attached here.

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Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind
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129 Responses to White House Proposal Would Grant Work Cards to Backlogged Employment Green Card Applicants

  1. Jay R says:

    Thanks a lot for sharing this great news 🙂

  2. Soopergal says:

    Greg, what about people how have not selected Consular Processing in their application? and since the applicant will no longer be on a non-immigrant status, how will he travel without an Advance Parole document? and does consular processing mean we have to leave the United states and our existing job?

    • Greg Siskind says:

      I would expect there will be a way to request consular processing when people’s priority dates are close to being current. I also think parole is likely to be part of the package, though we’ll need to wait and see. Consular processing should be brief and not disruptive to most people’s employment. I’ve also heard that there may be other changes not mentioned in this memorandum that might make it easier to adjust status. But I don’t know the details on that yet.

  3. Anonymous says:

    Thanks for sharing Greg

  4. Anonymous says:

    Thank you for sharing.

  5. U says:

    What about Advanced Parole? Or is it just going to be EAD? Will there be any freedom of travel abroad?

  6. U says:

    This rule supports slavery –

    “The I-140 revocation proposal envisions a system where approved I-140s continue to remain valid for the beneficiary despite the employer’s withdrawal of the petition or the termination of the business as long as 1) more than one year has passed since the approval of the petition and 2) the beneficiary has a job that is in the same or a similar occupational classification as the one in the I-140. This is very similar to the INA Section 204(j) provision for adjustment portability. The proposal would not alter other rules governing revocation such as those governing revocations for fraud or willful misrepresentation.”

  7. Naveen says:

    Hope it happens this year. Thanks for sharing

  8. dj says:

    “The timing. The memorandum doesn’t mention whether drafting has begun or when a notice of proposed rulemaking may be released. The fact that rulemaking is needed means that we’ll be waiting many months – my guess is about a year – before we actually see this proposal take effect.”

    – That seems like a lot of time given the EO happened in Nov’2014..Are we saying this proposal could “take effect” in mid-late 2016 (just before the elections)? By fast track – do we have any estimates?

  9. Anonymous says:

    Thanks for posting !

  10. Anonymous says:

    thanks a lot for sharing the news

  11. Ravindra pentela says:

    Thanks a lot.

  12. Sujoy says:

    It seems very Complicated for me. After this fixes, If an Employee leaves Employer after I 140 approval and joins another company with same occupation, Does he need to start the Green card process again with Labor processing?

    • Greg Siskind says:

      This potential rule would allow many people to avoid having to file a new green card application. The key will be the exact wording of the rule since many people may not be covered if it is written restrictively. We will need to wait and see.

  13. Ashish Chaudhary says:

    Hi Greg,

    Thanks a lot for sharing this post! A quick question

    I currently shifted jobs and have an approved I 140 petition from my previous employer. Although my current employer has started my Green Card process, I am only at the determination of the prevailing wages step. You think I will benefit from this new proposed rule i.e. I will be given pre 485 benefits using my previous employers I 140 (which I am pretty certain is withdrawn)

    • Greg Siskind says:

      I wouldn’t alter any plans at this point. First, we don’t know how long it is going to take before new rules come in to effect. Second, we don’t know what the exact rules are going to be and who will and will not qualify.

  14. Anonymous says:

    wonderful.But not sure when this will become effective?

  15. Anonymous says:

    How long it takes for official announcement from Whitehouse/USCIS?

    • Greg Siskind says:

      Given the news is now out and given IV’s noting that we would hear very soon, I’m guessing we’ll get something in a few days to a few weeks.

  16. Mohan says:

    How long does it take for Official announcement? by the way thanks a lot for your update

  17. sanoukss says:

    Awesome News we are counting ..:)

  18. Anonymous says:

    Thanks for sharing

  19. Anonymous says:

    Thanks for the sharing. It clears a lot of air, but still “when” is in the air.

  20. Harry says:

    Awesome news!! Thank you!!

  21. Anonymous says:

    its a good news for EB immigrant community. The main concern would be, how fast USCIS processa adjustment of status application,though this rules allow them to do pre-registration. Would like to see, changing their process or making more efficient process in approving adjustment of permananet resident status for EB community …

  22. Anonymous says:

    Thank you.

  23. Eddie says:

    Thanks for sharing this. Your blog is clear, to the point.

  24. Waiting says:

    Thanks !!

  25. Rana says:

    It is a good news.

  26. AME says:

    Greg,

    Do you think the upcoming fixes will help someone that is currently outside the US with an approved (but revoked) I-140 and laid off before the 3 year H1B extension (based on approved I-140) was filed? Do you think an EAD/AP to enter the US may be possible in such a case through Consular Processing?

    Thanks.

    • Greg Siskind says:

      Hard to say. The memo speaks to “certain conditions” being met and whether there are restrictions not mentioned. So I’m reluctant to answer. I’m not terribly optimistic cases like yours will be covered, but we’ll have to see.

  27. dev says:

    This is a great news, thanks for sharing!

    Greg, I’m currently in the process of looking and interviewing for new job and may change employer in future. Do you think it is wise decision to look out for a new job at this point of time, considering the proposed fixes are due in future? I currently have an I140 approved with my current employer and this I140 was approved one and a half year back. Thanks in advance.

    • Greg Siskind says:

      Hi Dev – I would not make any decisions based on what I’m reporting. The timing and details are not known and until we get a final regulation, it’s still speculative how things will turn out. Greg

  28. BoB says:

    Has the authenticity been verified and is it legal?

    • Greg Siskind says:

      I now believe the document is authentic. But it just discusses a proposal and is not the proposal itself nor does it lay out any timeframe. It does say we’ll need to go through a rulemaking process which will no doubt take many months.

  29. Anonymous says:

    Hi Greg, Thanks a lot for sharing this news!!!

    I’ve a question:
    I’m currently working in USA with employer who applied my I-140 and got approval notice as well. If I change company now, will my current I-140 will be revoked or I can retain current I-140 with new employer as well?

    What if this new rule is implemented before I get new I-140? Do I need to wait for my priority date becomes current?

    Regards
    KP

    • Greg Siskind says:

      As of now, it would depend on what your employer does. If it revokes, you’re out of luck because current regulations require USCIS revocation. This proposal would change that. If the I-140 was approved after the rule went in to effect, it would seemingly be good news. But I really am posting this to let people know to keep an eye out for this change. It would be unwise for anyone to make strategy choices at this point based on this memo alone.

  30. Sora says:

    I lived in the US for 10 years, out of whichI spent 2 years in getting my MS in CS and another 8 years on H1B. I paid over 210K in taxes over 8 years and I am still not sure if I should buy a house, or invest in a business. Every time I change jobs, I regret staying here in this wonderful land of opportunity. But, I told myself that there will be a day when it will all be over. And from this blog post, I can say that the day is coming very soon.
    Now I can dream of a green card before I have my grand kids.

    • Greg Siskind says:

      I hope we’re going to see many positive changes that provide stability for high skilled immigrants, particularly those from countries that are currently backlogged due to unwise per country quotas.

  31. ss says:

    Hi Greg, my spouse and I have separate green card applications and we both have I-140 approved, however mine is in EB2 and my spouse’s is EB3 category. If we file for I-485 separately, do you think there will be any chance I can include my spouse at a later time in my green card application? On the flip side, If she comes to my I-485 application and something happens to my job situation, will she be able to file I-485 on her old I-140 approved priority date, that she dropped while coming to my I-485 application? Please advise.

    • Greg Siskind says:

      Generally speaking, spouses can be included in an adjustment application (the main exceptions being situations where spouses have status violations, J-1 home residency requirements, etc. It is possible for a person to have more than one adjustment application pending based on separately approved I-140s so you should discuss this with your immigration lawyer.

  32. nagi says:

    thx for sharing the document , any time lines you can share, when officials will announce ?

  33. Jayesh says:

    Greg,

    One thing I noticed here is. Kudos to you for your time writing this blog and answering everyone’s questions. This tells me that people like you care about how this affects EB community. I really appreciate your effort. Thank you so much for what you are doing.

  34. Azul says:

    Hi Greg,
    I have a June 18, 2010 PD in EB2 and was hoping that my date would be current. Do you think that happening this year? Also, what do you think are the chances of I-140 EAD becoming a reality and by when?

    • Greg Siskind says:

      I assume you’re Indian and not Chinese because those are the only EB-2 backlog countries and they’re not backlogged by the same amount. Assuming you’re Indian, I’m not anticipating any good news for a while on forward movement of numbers.

  35. Thanks for your contribution.

    I am working for Employer A,Priority date is May 6th 2010,with EB2.I am on First H1B renewal (one more year left on H1B) with I-140, after 6 years.
    My Current employer ready to agree, he wont invoke I-140 for 1 and half Year.
    Got an offer from Client,They are ready to file GC on EB2.

    I have Below questions,
    I need your suggestion, Is it good idea to change to full time at this time?
    How long it will take for H1B Transfer with current Trend(attorney saying 6-8 weeks)?.
    How soon the labor(Perm) is going to file from Client, side based on your Experience?.
    How long it will take to approve Labor and I-140 with current trend, if Client starts GC processing?.
    2015 May 26th onwards USCIS accepting H4 EAD applications.If i file H4 EAD for my wife under current employer, after that H1B transfered to Client,what will will happen to her EAD?.
    If the Priority dates are current After transferring H1B to Client,who is going to file EAD (Current employer or Client)?. What are my options?.
    If the Priority dates are current After transferring H1B to Client,Lets say Employer A filed EAD. What are my Options?.
    Is it possible to transfer EAD to Client and how?.
    What happens if i-140 revoked?.

    Thank you in advance

    • Greg Siskind says:

      I am advising clients NOT to make decisions on the assumption that this proposed rule is going to become law. It could look far different when it is final and it’s also possible USCIS would sit on the proposed rule indefinitely and not go final. Also, I don’t think we’ll see anything go final until next year at the earliest.

  36. Prijju says:

    Hi Greg ,

    If this were to be the rule , I am hoping this is independent of the visa status . A person with an L1b status would also be able to make use of this rule with 180 days after approved i140 , correct ?

    • Greg Siskind says:

      As far as I can tell, the rule would not require maintenance of a particular type of non-immigrant status. I believe that an I-140 would need to have been filed a year beforehand from the way I read the memo.

  37. RT says:

    Hello Greg,
    As always your blog is so informative! This is one is particularly encouraging too. But changing topics, what is your opinion of the lawsuit against the H4 EAD rule?

  38. Rahul Sharma says:

    Hello Greg

    Thanks a lot for sharing this way early…. Please if you can answer this
    1)The new rule would consider these I-140 petitions to remain valid for a beneficiary when “certain criteria are met.” ? what does this means
    2) Is it possible that it will become law sooner than to wait till 2016
    3) Have they mentioned about same or simillar ?

    Thanks

    • Greg Siskind says:

      1. Not sure yet on the criteria except the one mentioned in the memo which is that the I-140 would need to have been approved for a year.
      2. Doubt we’ll see a proposed rule for several months and then several months after that on a final rule.
      3. Not much on “same or similar” yet.

  39. Jayesh says:

    Hi Greg,

    A quick question for you?

    What would you make out from NPRM Date of 10/00/2015 on this page http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201504&RIN=1615-AC05 ? Is Administration again giving some time to congress to do something on immigration reform? What else might encourage them to keep date to be so far out?

    • Greg Siskind says:

      Hi Jayesh – I think the dates are designed to give a rough idea for when the action item in the agenda is to be completed. This would seem to mean that the proposed rule would be published sometime in October if DHS sticks to the plan.

      • Jayesh says:

        Hi Greg,

        Thank you for your response. I must have total misunderstanding of NPRM being the start date. This really helps. Thank you so much sir.

  40. kankyle71 says:

    Hi Greg,I have an approved i140 since 2007 in the unskilled eb3 category,will this apply to me as well or do i still have to wait in limbo for “congress” to decide my faith?

    • Greg Siskind says:

      Too early to say. I’m guessing it will cover the EB-3 category. Not sure if it will cover unskilled or just those in the skilled/professional category.

  41. acemachine says:

    Hi Greg

    I am still on F1 visa (OPT ends soon) and my employer is starting the green card process. Do you think EADs will be given to all approved I 140? I have not been getting the h1b visa for the past 2 years due to oversubscription and i was wondering if I could use EAD from approved I 140. Will that be a good option?

    • Greg Siskind says:

      I’m not sure. If they want the new rule to mirror AC21, you might have to have an I-140 that was approved for a year or more. But it’s hard to say what will be in the actual rule.

      • Marie says:

        With this new rule, if we have an approved I 140 do we have to apply for visa extension to stay in the U.S. after visa expires or it is no longer needed?

        • Greg Siskind says:

          I would apply for the extension. You never can tell what will happen and I’ve seen instances where the green card fell apart and a client needed to fall back on the underlying H-1B.

  42. Patel says:

    Thank god for the future of children under H-4 and reaching 21 years.

  43. Marie says:

    My I 140 was applied February 2015 by my employer in EB 3 category. When the priority became current last April, my lawyer filed my i 485. However my application arrived 7 hours late at the lock box facility so no one received my application. The next day the PD retrogressed for 7 years which is the date the USCIS received my application. But they sent me 1797 c telling me that my EAD and AP is on process. After a week they sent me Biometrics appointment which I did. Any thought on this? Thank you by the way for posting this great news.

  44. Marie says:

    Hi,

    Follow up question, can I file for a new I 485 at USCIS with the same category while waiting for adjudication of my previously applied I-485 when my PD becomes current again? I was the one whose I 485 application arrived at the USCIS lock box facility on the date where my Priority Date is no longer current due to retrogression the next day.
    Thanks

  45. Nuri says:

    Hi,
    Stayed and worked ın US between 2001-2003 years about 23 months wıth B1-B2 issued visa , then back to my country ıntentıonally. Does give any opportunıty to obtain a green card or work permıt or stg like that according to recent ımmıgration laws.Thank you.

    • Greg Siskind says:

      I’d have to have a consultation with you to advise. Too many questions to ask to be able to advise.

      • Nuri says:

        Thank you for your sıncere answer. Whıch questıons should I answer for you to gıve me an advise.Because Im not ın US now. How ıt could be ? (I mean consultatıon ?). Thank you.

  46. krishna says:

    Hello Greg,
    During the AILA conference recently. Any update on filing AOS when visa number is not available. when will this be implemented any time frame.. Is this still in the pipeline… can you shed some light on this…

    • Greg Siskind says:

      Hi Krishna – See my answer to RD. No news yet, unfortunately, on the timing. But at least we know that the regulation is being written.Greg

      • krishna says:

        Hello Greg, Thanks for you reply. I have seen in forums and in discussions that Filing AOS when visa number not available is going to be implemented by october of this year. Is this really true?. sorry if i am bothering too much. Curious to know.

  47. Anonymous says:

    A big Thank you to Mr.Greg for sharing this valuable information.

  48. Deepak says:

    Very informative, Thanks Greg

  49. ADMIN says:

    Any comments on the below listed information posted at http://www.immigration-law.com/XXIV.html?

    07/08/2015: Rule-Making Agenda for Modernization of Employment-Based Immigration System

    Record reflects that the Obama Administration has been following the rule-making agenda for administrative immigration reforms which are published in the Spring 2016 Rule-Makiing Agenda. As scheduled, USCIS published final rule for the wage methodology for H-2B program in the form of a final rule recently. Today, 07/08/2015, USCIS submitted its “proposed” rule for provisional unlawful presence waivers of inadmissibility as schedule for July 2015 in the agenda. It is thus anticipated that the USCIS and DOL will initiate or complete its rule-making process for modernization of employment-based immigration system in the following sequence:
    August 2015: Submit to OMB a proposed rule for significant public benefit parole for entrepreneurs
    October 2015: Submit to OMB a proposed rule for modernization of employment-based immigration system including so-called pre-registration of adjustment application for those with the approved I-140 petition
    December 2015: DOL will submit a proposed rule to modernize PERM program including premium processing of PERM applications
    January 2016: Release of final rule and implementation of reform of H-1B1, Cw-1, and E-3 nonimmigrant programs and reform of EB-1B outstanding researcher or teacher immigration program.
    We will keep track of these rule-making agenda for the employment-based immigration reform. EB immigrant community may start push for these rule-making process once they start going though the OMB by contacting with the stakeholder agencies, White House, and OMB and not the legislators. When the decision makers are administrative agencies using their executive power and discretionary authority under the U.S. Constitution without legislative process, contacting with the legislators may negatively affect the rule-making process, just as they witnessed in the H-4 rule-making process.

  50. sri says:

    hello Greg Immigration voice group is announcing that the Immigration Modernization fixes report will be coming today… any thoughts on this… is this true?.

  51. Vikas says:

    Hi Greg!
    Thanks for sharing the information! That’s really useful.
    I have a doubt:
    Following is an excerpt from your post:
    “The memorandum notes as well that while I-140 beneficiaries would be able to change jobs without fear of losing their underlying immigrant visa petition, most beneficiaries would be unable to adjust status in the US since they would no longer hold non-immigrant status. Consular processing would generally be the route to permanent residency (which, the memorandum notes, may have the side benefit of deterring fraud or misuse of the program).”

    Could you please shed some light on it?
    Thanks!

    • Greg Siskind says:

      To adjust status in the US, you need to be maintaining a lawful non-immigrant status. However, if you just have an EAD, while you may be in a lawful status, according to the memo, you would still not be eligible to file to adjust to permanent residency in the US and would instead need to process at a consulate. That would be inconvenient for many, of course, since it would mean having to be outside the US for a few weeks waiting on an an appointment, medical exam, etc. at the end of the process. Plus, there are the costs of travel (though the visa application fees are substantially less than the adjustment of status filing fees).

    • Marie says:

      Thanks Greg for this info.

  52. sanjay says:

    I have a valid I-140 (USCIS website still shows approval), dated June 2008. My PD is 3rd Oct 2007 filed under EB-2. I left this employer two months before the approval came. Then, I moved back to India in Feb 2009 to study and eventually work. would i be eligible for an EAD and consular processing with my valid I-140?

    regards

  53. i140EADWaiting says:

    “certain criteria are met” means I-140 would need to have been approved for a year or more than 6 years of duration of stay with approved i-140 or both criteria should match? Please clarify.

  54. Pramodh says:

    Greg,

    I would really like to appreciate your patience in answering each of our questions. I have seen your other blogs also where you have been reading and repiying patiently and answering them best. As you can see all of us from India have been waiting for years for that one fine day, having so many questions, living with uncertainities and being in slavery and wanting so many big things to do and make big progress like buy a house, start a company or business n more.

    I am sure and I believe that your response to each one of us giving so much of hope to continue our wait. Thanks again for this. Much much appreciated.

    Hope USCIS and DOL get this done completly before Spring 2016 and all of us get some relief before 2016. We are sure it will take another decade to get our green card so no point in looking for that.

    thanks
    Pramodh

  55. Asheesh says:

    Dear Sir

    Thank you for taking out time to write such information-filled blogs. Please allow me to ask one question on the comment below

    “1. USCIS would issue a new rule providing employment authorization to beneficiaries (and their derivative spouses and children) of approved employment-based immigrant visa petitions.”

    Do you think that this new rule would cover approved I-140s from previous employer? I have an approved I-140 from my current employer. I now have an offer from Employer B also. So, if I switch employers, and after I switch these new rules come into effect, do you think I will be able to get EAD based on the approved I-140 from the previous employer? Also, what is an “interim EAD”? Will it allow me to switch employers or does it only allow to take progressive jobs with current employer?

    Thank You

    • Greg Siskind says:

      Hi Ashish – Your question is of the type many people have. An important question regarding how the coming I-140 revocation/EAD rule would work, but one that is impossible to answer at this point because we don’t even have a draft of a proposed rule. I generally tell clients to go about their immigration planning on the assumption the rule is not coming because we have no idea of when it will be released (even estimates published by the government are frequently unreliable) and we don’t know whether the information learned to date regarding the proposal will make it in to the proposal intact. Greg

      • Asheesh says:

        Hi Greg
        I was trying to look for any progress on this rule. Is there a place where we can track the progress?

        Separate from this issue, but I also came across the case of In Re Grace Estrellado. Has USCIS come out with any clarifications? Are you seeing revoked I-140s also been able to port the dates, just as they used to prior to the BIA decision, or has the USCIS started declining them as a matter of practice after the ruling was announced?

        Thanks
        Asheesh

  56. Anonymous says:

    Hi, If I apply for I-140 now on and I stick to my employer and the I-140 is approved before this rule comes into effect in less than or beyond 1 year, would the rule include such cases for automatic EAD ?

    • Greg Siskind says:

      If I’m understanding you, I’m guessing you would be covered. But that’s based on what we think USCIS has in mind. We really don’t have specifics.

  57. shah says:

    Hi Greg,

    Thank you for wonderfully drafted article.

    Can you please update the status of this new rule.

    Thank You,
    Shah

  58. Anonymous says:

    1) Do you think Oct’15 can serve as a immediate relief for employee with I-140 approved or its going to be another round of governance?
    2) Your thoughts on OCT’15 visa bulletin , can it do some magic with Modernization immigration reform ?
    3) Silence is good but no action is scary.. Thr has been a big silence from DHS/ USICS on legal immigration..

    • Greg Siskind says:

      I’ll be very surprised if the October visa bulletin reflects the changes being reported and I don’t believe the new I-140 rule will be effective until at least several months in to 2016. Wish I could give a more optimistic opinion.

  59. Anonymous says:

    Hello Greg,
    http://www.natlawreview.com/article/significant-change-to-us-department-state-visa-bulletin

    i found this article stating We now have details about how the Department of State intends to make this work:

    The new Visa Bulletin will have an “acceptance” cut-off date much earlier than the usual cutoff date. That will allow the I-485 to be filed (and the EAD, and the Advance Parole). It is anticipated that the “acceptance” cut-off date will be several years earlier than current cut-off dates for India and China Employment-Based categories (EB-2 and EB-3). So, if you have not been able to file your I-485 due to retrogression, you will now be able to file!!!
    BUT,

    Another part of the bulletin will have an “approval” cut-off date, which will basically be the way the visa bulletin is now. So, when your priority date crosses the “acceptance” cut-off date, you can file your I-485. But, only when your priority date crosses the “approval” cut-off date can your green card actually be approved.

    Is this Ture? any thoughts how long will the dates move by coming Visa bulletin?.

    • Asheesh says:

      If this is the reality then all I can say is it is a cruel joke on EB3 from India. They may just say that they have no intention of giving EADs or GCs to EB3 from India, and end the drama. Moving 1 year for EB3 and calling this a reform is a stretch

  60. Leo says:

    Hi Greg,

    My PD is Dec-5-2013 EB2 I. As per the new VB, when can I expect my PD to be current ?

    And also do we see any chance of I-140 portability in near future?

    Appreciate any advice/reply.

    Regards

    • Greg Siskind says:

      No idea. I am getting a lot of questions asking for me to prognosticate on when priority dates will be current for readers, but unfortunately I am not in a position to be able to do so. I can tell you that I’ve heard dates are not likely to move much for INdians over the next several months.

  61. S. Fishaqi says:

    Hello! Greg. First of all, I would like to thank you for providing such a valuable information.
    I am a beneficiary of I-140 with priority date of Feb 2003. My I -140 was approved in December 2006 and my company went out of business in December 2009. I have opted for consular processing and have paid the required immigrant visa fees in June 2007 after being asked by NVC as dates were current at that time. Since 2007, I am working in India as I am not able to get H1b due to lottery.
    Again in March 2013, National Visa Center has informed me to submit Immigrant visa application as the dates have become current. I have plenty of job offers from US employers.
    Would I be eligible to continue my green card process with the new proposed rule? As I said, I have other job offers from other US employers. Please provide your valuable inputs. Thanks!

  62. Anonymous says:

    Greg, Will it not make sense to let all i140s apply for i485 (like other Worldwide category) and then get them EAD , rather than creating two different categories of EADs(one with approved i140 and another one with pending i485), They can achieve this by eventually progressing the Acceptance Cut off date gradually and making it current eventually for all backlogged countries and categories.

  63. Michael Phulwani says:

    If such proposal is implemented, it would be great relief to the individuals who are waiting in line for many many years. It is the right thing to do for President Obama and USCIS.

    It is my understanding that if the proposal is implemented, it would:
    1. Aliens who have approved I-140s but waiting for visa numbers to become available, the principal beneficiaries as well as their derivative family members maybe granted EAD. (Question: Will they also be permitted to travel abroad without triggering 3 or 10 years bar?

    2. Only principal beneficiaries will be counted for visa numbers and derivative family members will not be counted. This would immediately result in cut off dates to advance speedily.

    3. Obviously, these benefits may be granted without filing I-485 which can be done when visa numbers become available for them or will they be permitted to file I-485.

    Question is with present policy of the Congress, will there be any law suits or immigration to hold such efforts until the courts decides whether Administration has powers to take such action. Let us not forget the second DACA and DAPA and challenging the EAD for H4’s are still pending with the courts.

    • You are damned right there will be lawsuits. The President does not have the Constitutional authority to change immigration law on his own. This will be stopped by a federal court well before it can be implemented, thank goodness.

  64. […] Employment-Based Immigrant Visa System.” But a secret memo recently leaked on an immigration law blog now reveals that this ‘modernization’ plan will not only fast-track hundreds of thousands of […]

  65. Hopefully this will immediately garner a lawsuit and a court will once again be required to halt an Unconstitutional action by the President. No you are not going to bring in millions more to take millions of additional jobs away from Americans you stinking tyrant.

    • Deepak says:

      Why don’t you show your face John, you are ill representing, please read the facts on how one get’s an i140, illegal immigrants cannot get an i140, you are an immigrant too, don’t forget it, hopefully you came from the right path to become a citizen, How can an employer file I140 for illegal alien when I140 is filed for EB employees?? , Most of the i140 folks are here last 10 years, paying taxes and giving value to your house and money

  66. J Monte says:

    Question. According to the new rules that are not implemented yet – Mentions: “Illegal aliens will also be able to take advantage of the program because the only requirement for filing an I-140 is an official ID. Proving lawful presence in the country is not a prerequisite.”

    In other words – Someone that has overstayed their visa can this person find an sponsor for his employment visa?

  67. Juan Magbojos says:

    Hi Sir,

    i have an approved i-140 Eb-3 as caregiver since 2009, but i overstayed my non immigrant visa (b1/b1) 7 years ago. but i’m still working on the same employer who filed a petition. am i included in this new provision?

    thanks and God bless

  68. […] Employment-Based Immigrant Visa System.” But a secret memo recently leaked on an immigration law blog now reveals that this ‘modernization’ plan will not only fast-track hundreds of thousands of […]

  69. […] to a secret memo, Barack Obama’s executive order that he signed in November will permit illegal immigrants who […]

  70. […] Employment-Based Immigrant Visa System.” But a secret memo recently leaked on an immigration law blog now reveals that this ‘modernization’ plan will not only fast-track hundreds of thousands of […]

  71. […] the attention of several lawmakers after a preview of the rule was released and version of it was leaked this summer. The rule would grant work authorization to individuals with an approved employment-based petition, […]

  72. RR says:

    Most Americans don’t understand how salaries and Number of available Jobs can move upwards with Mobility of Labor Force. H-1B is invitation of Foreign born humans to work in US to address Demand & Supply difference. But Keeping them stuck with one Employer leads to Employer Taking FULL advantage of both “Legal Immigrant as well as American Worker”, This creates competition for lower wages (No GROWTH in wages) forces Immigrant and American Employee not move due to insecurity. Employers get away with Lower pay with indentured servants, and above all “No movement in Market” means less hiring activity and opportunities in the Market……. i140-EAD will help some people moving jobs, even quit industry to start ventured, creating new opportunities for others or work in various pursuits. Understand Freedom for Worker is not same as eating American Jobs. Look at this http://tinyurl.com/hsb7d4l

  73. Hi Greg,

    Are there any changes to what you have written above in last 6 months ?

    Regards
    Krishna

  74. […] to a secret memo, Barack Obama’s executive order that he signed in November will permit illegal immigrants who […]

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