Green Card Processing Updates – Visa Bulletin, Two-Year EADs and Premium Processing for Sixth-Year H-1Bs

Several recent developments may impact green card processing for numerous applicants.

First, the Department of State (DOS) released the July Visa Bulletin indicating that this year’s allocation of immigrant visas (“green cards”) in the Employment-Based Third Category (EB-3) have been exhausted.  As such, the DOS has indicated that green cards for EB-3 cases will be unavailable from July through September, the end of the government’s fiscal year, and will then become available again in October.  EB-3 beneficiaries can continue to file the I-485 Adjustment of Status (AOS) “green card” applications through June 30 based on the priority dates indicated in the June Visa Bulletin.  With a large number of I-485 adjustment applications pending at USCIS, the delays in completing green card processing is likely to continue, and perhaps worsen, in the months and years to come. 

Pending EB-3 adjustment cases did receive some welcome relief, as USCIS announced on June 12 that it will issue two-year Employment Authorization Documents (EADs) to certain applicants with an AOS pending.  As background, AOS applicants are eligible to apply for EADs during the pendency of their AOS applications.  Those EADs have generally been issued in one-year increments.  However, AOS applicants can now be issued two-year EADs, but only where the immigrant visa number is unavailable according to the DOS’ Visa Bulletin.  Thus, based on the new policy of USCIS, EB-3 adjustment applicants should be granted two-year EADs for applications processed between now and the end of September.  For more information, see the June 12 USCIS Update.

In another policy change, USCIS has made Premium Processing Service available for a limited number of Form I-140 Immigrant Petition for Alien Worker petitions filed on or after June 16.  Specifically, USCIS will began accepting Form I-907, Request for Premium Processing Service, for Forms I-140 filed for beneficiaries who, as of the date of filing the Form I-907:

• Are currently in H-1B nonimmigrant status;
• Will reach the end of the sixth year of their H-1B nonimmigrant stay in 60 days;
• Are only eligible for a further H-1B extension under Section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) upon approval of their Form I-140 petition; and
• Are ineligible to extend their H-1B status under AC21 §106(a).

Section 104(c) of AC21 permits a three-year extension of stay for an H-1B nonimmigrant alien, provided he or she is the beneficiary of an approved Form I-140 petition and otherwise eligible for lawful permanent resident (“green card”) status except that the employment-based preference visa is unavailable.   Section 106(a) of AC21 allows extensions of H-1B status in one-year increments where an I-140 petition or underlying labor certification was filed for an H-1B worker more than 365 days ago (up until a final denial has been issued for the application/petition or any subsequent step in the process).  Thus, the Premium Processing policy change will benefit those H-1B workers who are approaching their six-year H-1B limit and have I-140 petitions that have been pending less than one year or approved labor certifications filed less than one year ago.  For more information, see the June 11 USCIS Update.

Note: This article was published in the June 2008 issue of the Immigration eAuthority.