Priority Date Finally Current! How Soon Should I-485 be Filed?

Numerous questions have been generated by movement of the EB2 cutoff date for India and China, as reflected in the U.S. Department of State (DOS) visa bulletin during the early portion of fiscal year 2012 (FY12). Among these is one important series of questions concerning when one must file the adjustment of status (I-485) application. Anxiety prevails among those about to file after waiting for years. Many applicants want to file on the first day of the month in which their priority dates become current. This is not always the case, however – when one is not yet married and wants to include the future spouse, for example. Questions such as this, about delaying the I-485 filing, are addressed here for the benefit of MurthyDotCom and MurthyBulletin readers.

Can Wait to File the I-485 if the PD Remains Current

While it is permissible to file the I-485 as soon as one’s priority date becomes current, this is not a requirement. The case may be filed at a later time, as long as all requirements are met at the time of that later filing. If a person does not file in December 2011, therefore, even though s/he could do so, the opportunity is not necessarily lost. As long as the priority date remains current, the case can be filed, in this example, in January or February 2012 or a later time.

Reasons to Delay Filing the I-485: Marriage Plans, Travel

There are a number of reasons that an individual may not be able to – or chooses not to – file his or her I-485 in the month that the priority date first becomes current. One of the most common reasons among MurthyDotCom and MurthyBulletin readers involves marriage plans. In order for a spouse to be eligible for immigration benefits under the “umbrella” of the primary applicant’s employment-based green card case, the marriage must occur before the I-485 is approved. When marriage plans are uncertain, it is not uncommon to defer the I-485 filing. More information on this topic can be found on MurthyDotCom in our NewsBrief, I-485 Approvals Possible: Impact on Spouses / Children without Filed I-485s (22.Apr.2011).

Travel abroad is another common reason that individuals are not always able to file their I-485s immediately when the priority date becomes current. It is necessary to be in the United States in order to file the I-485. Those who are outside of the U.S. when their priority dates become current may have to wait until they return to the U.S., usually in a dual intent status, such as an H or L.

Added to the more common travel and marriage reasons to delay filing I-485s are a host of other scenarios. A physician who is subject to the J-1 two-year home return requirement generally has to delay the I-485 filing while s/he meets the terms of the waiver by working in an underserved area for three years. Other individuals may have suffered a denial at either the labor certification or the I-140 stage. This may prevent the applicant from filing the I-485 when the priority date becomes current. If one is able to overcome the reasons for the denial, typically through an appeal or a motion to reopen, s/he (and all dependent family members) may be able to file the I-485 at a later time.

I-485 Can Be Filed Anytime in the Future

There is no actual time limit governing how long a person could wait to move forward with an I-485 filing. I-140 petitions do not expire. There are, however, overall risks in waiting for greatly extended periods of time, as explained below. These issues should be discussed with an experienced, qualified immigration attorney, who can provide guidance in such matters.

Risks of Delayed Filing: Job Loss, Career Stagnation, Retrogression

The greatest risk in delaying is that the opportunity may be lost. In employment-based green card cases, the entire basis for a case is the employer’s job offer. If the job offer is lost or the business shuts down prior to the I-485 filing, the case will end. This can be a significant risk, particularly in a period of economic instability.

There is also a risk of retrogression. If one’s case is delayed, and the cutoff dates retrogress, the individual then will have to wait until his/her priority date is current again. The length of time could be significant. When assessing this risk, it is necessary to consider the reason for the cutoff date advancement. If the advancement is an unusual circumstance (such as occurred in the summer of 2007), waiting may be risky, as retrogression is highly likely. On the other hand, when cutoff dates are moving forward routinely, there is less likelihood of significant and extended retrogression.

Delaying one’s filing can also delay eligibility for promotions and job changes. As mentioned above, labor certification filings are based on a specific job offer. The job offer must exist at the time of the I-485 filing. Moreover, the job offer must generally continue to exist throughout the life of the case, and it is expected that the foreign national will continue to work in the sponsored employment for a reasonable period following approval of the I-485. Thus, delaying the I-485 means being tied to the particular employment for a longer duration. For some, this prevents opportunities for promotions and other career advancement. [There is an exception to this under the American Competitiveness in the Twenty First Century Act (AC21). However, that requires that the I-485 remain pending for at least 180 days. AC21 is beyond the scope of this article, but extensive information is available by searching AC21 on www.murthy.com.]

Conclusion

It is helpful knowing it is not necessary to file the I-485 case as soon as the priority date becomes current. In some cases, a delay in filing simply means that the case moves forward a month or a few months later, with no other significant difference. For others, it could be risky, potentially causing them to lose the opportunity for a long time. Those with questions regarding case timing and I-485 filings should seek advice from a knowledgeable and qualified immigration attorney. Attorneys at the Murthy Law Firm are available for consultation on these matters.

Copyright © 2011, MURTHY LAW FIRM. All Rights Reserved