USCIS FAQ Part 3

suzanne4, RN · Aug 9, 2007

Another thread that reconfirms what I was saying a few weeks ago.

Glad to see this, especially for those that came a few weeks ago with the intent of using their tourist visa to adjust and jump ahead of the others.

lady123 · Aug 10, 2007

It seems this is a misleading interpretation of the FAQ.

Still the schedule A case can file the AOS till Aug 17th if they have a priority date (filed I140 in schdeule A case) of July 31 or before, provided they meet the other criteria for an AOS. This is based on the 2nd and 3rd FAQ.This is the case with any other EB category.

What the FAQ tried to clear that if some one files an i140 and I 485 in august the I485 will be rejected based on the fact thier priority date is August for Schdeule A which is unavailanle for AOS. For other cases the Labor certification is the priority date and USCIS allows them to file i140 and i485 cuncurrently till Aug 17th.

"

Q36: Will USCIS accept Schedule A concurrently filed I-140 petitions and adjustment of status applications that are filed on or after August 1, 2007?

A36: As previously stated, USCIS will accept properly filed Forms I-140 filed on behalf of aliens with a priority date on or after August 1, 2007; however, pursuant to August Visa Bulletin No. 108, USCIS will reject any concurrently filed adjustment of status applications filed by aliens with a priority date on or after August 1, 2007. "

lawrence01 · Aug 10, 2007

Before continuing... note that we are just talking about Schedule As, Labor Certification is not needed for filing of I-140s for Schedule As, new application and petition fees are effective on July 30, 2007, and all interpretations made here by anyone are just a layman's interpretations and that in the end it is still with USCIS to decide.

Now, the big question is why would a Schedule A worker who is already in the US for at least 60-90 days not file the I-485 (AOS) together w/ the I-140 before the fee increases and why wait until August 17 ?? The difference is just a few weeks so there is no point delaying it plus she or he will be saving a lot of money by filing everything all at the same time before the effective date of the new USCIS fees. It doesn't make sense. Well, to me at least, esp. since there is only a couple of weeks difference between July 30 and August 17.

JunRN · Aug 10, 2007

I know some nurses who filed I-140 electronically (e-filing) and then will submit documents within seven days. They did this on July 31.

These nurses can still be able to adjust their status to immigrant because their PD is July, 2007.

Now, regarding the 60 to 90 days rules, some lawyers were suggesting that in this particular case, those with more than 30 days can apply and have big chances of approval. Reason being is that the USCIS is flip-floping on its policy (Visa Bulletin fiasco) so the nurse also has the right to change his mind (intention).

lawrence01 · Aug 10, 2007

Now, regarding the 60 to 90 days rules, some lawyers were suggesting that in this particular case, those with more than 30 days can apply and have big chances of approval. Reason being is that the USCIS is flip-floping on its policy (Visa Bulletin fiasco) so the nurse also has the right to change his mind (intention).

This is funny if this is coming from a lawyer with all due respect to the one who originally said it. The 60-90 day rule is also not the sole factor whether to approve an AOS or not as approval of AOS is discretionary and there are those who were still not approved even if they observed that 60-90 day rule.

Also, there are already some reports of AOS being denied coming from last year's batch that were denied this July just as the AOS of the others are being approved and last year's batch have all the time to make sure they observe that rule as it was pretty much anticipated months ahead that Retrogression will happen come Nov. 2006.

Anyway, it is now August and every I-140 have been filed whether e-filed, mailed, couriered, or hand-carried and regardless of how long they have stayed in the US before filing it just to beat the dreaded August 1 PD w/c will result in a rejection of the AOS if it were to have that PD. Also note that a denied AOS cannot be appealed under normal circumstances so after the lawyer has filed everything and it got denied, his work is done, he got his professional fee, and the nurse w/ the denied AOS is deported and that will be the end of the story.

Good luck w/ the nurses you know that filed their I-140s on the very last day of July. They obviously arrived in the US somewhere in the last week of June to the 1st week of July for them to have to wait until the very last day of July to file for it and not having the time to file the I-485 and the EAD at the same the I-140 was filed and succumbing to the significant fee increase that was effective on July 30.

JunRN · Aug 10, 2007

The rule is that those who filed within 30 days will automatically be rejected for fraud and NO APPEAL can be made. Those applying after 30 days but before 60 days, the adjudication officer MAY suspect fraud and deny the case but this is APPEALABLE. Lawyers were just being careful in the past and they do everything after 90 days to erase this possibility of rejection due to fraud.

I know of a case that was filed after 5 days of arrival and got denied and I know of case of that was filed after 30 days that was approved and a case that was denied but appealed and then eventually, got approved.

To those passing just after 30 days, the applicant must be careful though that if he has documentation submitted showing his intention to immigrate and showing it was prepared within the 30 day period, that is ground for the adjudication officer to suspect fraud. For example, the medicals were done within 30 day period but the I-485 was submitted after 30 days, then the adjudication officer may suspect fraud and reject the case.

It is perfectly alright to change intention after 30 days during this particular duration (July VB) because even the USCIS changes its mind. A change in its policy is a reason that can be given once the adjudication officer interviews the applicant or at the immigration court during an appeal. In the past, lawyers were using the pending retrogression as reason.

I must admit, there is a risk of denial. And if an appeal is in order, it can cause the applicant huge amount of money because lawyers fees have gone up nowadays.

But the gain is outweighing the risk in this particular period. So many others take this risk.

lady123 · Aug 11, 2007

Before continuing... note that we are just talking about Schedule As, Labor Certification is not needed for filing of I-140s for Schedule As, new application and petition fees are effective on July 30, 2007, and all interpretations made here by anyone are just a layman's interpretations and that in the end it is still with USCIS to decide.
Now, the big question is why would a Schedule A worker who is already in the US for at least 60-90 days not file the I-485 (AOS) together w/ the I-140 before the fee increases and why wait until August 17 ?? The difference is just a few weeks so there is no point delaying it plus she or he will be saving a lot of money by filing everything all at the same time before the effective date of the new USCIS fees. It doesn't make sense. Well, to me at least, esp. since there is only a couple of weeks difference between July 30 and August 17.

You interpretted the new temporary ruling by USCIS as it is not for Schedule A but for H1b and all. What I told is that this is absolutely wrong and this ruling is same for all GC catogories. WHO EVER HAS A PRIORITY DATE BY JULY 31ST CAN FILE THE AOS TILL AUG 17. This answer your seconed question too. The normal validity for visa bulletin is 1 month and just to keep the same validity period the USCIS allowed to file AOS from July 17th to Aug 17th. This gives ample time to file the AOS for applicants who are here for 60-90 days but also for applicants in US for 4-5 years in h1 , h4, J1,etc !!!!.

The victim of this kind of interpretation is alwasy the layman. This is from my own experience. I had adviced by one of moderator here that I could not do anything for my GC application unless the priority date become current. This advice I got after I passed the NCLEX Exam. It was specifically mentioned that I could not do I40 and 485. But I was very late to find that it was the case with I485 only and not for I 140. And any who knows about the GC process knows that it is very much important that the importants of filing I40 to get an earlier priority date .If you try to file I40/485 together you need to have the priority date to be current for atleast 2-3 months to make up the waiting period for filing I 140( job posting requirements ,ect).

For the same reason only I am giving my opinion here when I see a wrong interpretation of a meterial fact.This is not against any individual who posts here .In fact they are helping many with thier vast knlowdege on certian subject. But the problem is that the layman will follow what ever they say b'z of thier nature of post that appears to be very authentic. Pls note that this opinion is very general in nature on the forums not specifically to this thread.

lady123.

suzanne4, RN · Aug 11, 2007

To clear up a few things, the I-140 does not require a Labor Certification that other jobs require. However, the I-140 does require that the job has been posted for at least ten days in a public venue and then have a thirty day wait period before the I-140 can be submitted. This is different from the actual Labor Certification. And a facility cannot legally offer a job until you have passed the NCLEX-Rn exam in the first place. So you need to add on to that time. The only time around that is if the nurse is under the OPT, and only with that can they offer a job without the NCLEX-RN being passed. The other issue is that the letter from the BON must be included with the petition, not just proof taken from the computer that someone has passed, and that takes about three weeks for the attorney to get that.

There was never any mention that the I-140 could not be filed, but that the requirements must have been met for it to be submitted. The mention was that no AOS could be started and that is the I-485. And when there were no visas available, most attorneys just told their clients to wait until something was posted. This is not information that I just came up with. If you do not like what I post, then you do not need to listen to it, that is your choice. But I have been more up front and honest with how things are done, and I am not getting paid for it. Attorneys are, and some have been known to give very bad information to their clients, not caring what happens to them. USCIS has already stated more than once that they will return any petiton that is not complete, they are not going to hold onto things waiting for other documents to be sent. And all attorneys are aware of this, but not all are following it. And as Lawrence stated, the attorney gets paid when the petition is submitted, they could care less if it gets denied. And since USCIS was forced to accept petitions when there are no visas available, only means that you are also going to see a much higher incidence of denials. That means proof of passing of the NCLEX exam from a letter from the BON, the proof of posting, and even the VSC is being requested to be filed initially due to the fact that many from last year were unable to pass the English exams and have their EADs cancelled. They do not want to waste their time. So I still stand by what I have stated over and over again.

Just because they have to accept, does not mean that they need to approve it.

lawrence01 · Aug 11, 2007

The rule is that those who filed within 30 days will automatically be rejected for fraud and NO APPEAL can be made. Those applying after 30 days but before 60 days, the adjudication officer MAY suspect fraud and deny the case but this is APPEALABLE. Lawyers were just being careful in the past and they do everything after 90 days to erase this possibility of rejection due to fraud.
I know of a case that was filed after 5 days of arrival and got denied and I know of case of that was filed after 30 days that was approved and a case that was denied but appealed and then eventually, got approved.
To those passing just after 30 days, the applicant must be careful though that if he has documentation submitted showing his intention to immigrate and showing it was prepared within the 30 day period, that is ground for the adjudication officer to suspect fraud. For example, the medicals were done within 30 day period but the I-485 was submitted after 30 days, then the adjudication officer may suspect fraud and reject the case.
It is perfectly alright to change intention after 30 days during this particular duration (July VB) because even the USCIS changes its mind. A change in its policy is a reason that can be given once the adjudication officer interviews the applicant or at the immigration court during an appeal. In the past, lawyers were using the pending retrogression as reason.
I must admit, there is a risk of denial. And if an appeal is in order, it can cause the applicant huge amount of money because lawyers fees have gone up nowadays.
But the gain is outweighing the risk in this particular period. So many others take this risk.

It is very risky but then again it is their decision to make, their risk to take, their money to spend and their time to waste. I am just weary for those who do not know and decide just base on a one-sided option so I am saying the other side of the coin and let them decide.

The nurses you know obviously knew about the 60-90 day rule and that anything below it will have a relatively higher risk of being denied while the longer it gets, the lower the risk but still with risk since observing the so-called "60-90 day rule" is not a hard and fast rule and a guarantee that it will be approved. Some still get denied for some reasons.

jonRNMD · Aug 11, 2007

3 weeks ago, one of my co-worker told me that her I-485 has been denied.....I thought her case would be smooth sailing but the Nebraska service center adjudicator apparently exercised their discretionary power and denied her application.....

this is one case wherein she really had no intent of adjusting her status when she first came here. the thing is, there no concrete way of proving non-intent by the papers you send to USCIS.....you can not argue with the officer that you do not have intent as most employment based AOS do not have to undergo an interview....the decision would all be based on all the standard papers that you submit to USCIS.

suzanne4, RN · Aug 11, 2007

Thanks for posting this. And as I keep mentioning, burden of proof is on the one that is filing the petitions, it is not on the government.

And a denial cannot be appealed, there was no green card ever issued.

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And unfortunately, you are going to see alot of this in the next few months, much more so than in the past. When you have to do something that you do not want to do, you try to go against them. And this is going to happen since USCIS was forced to accept petitions. The attorneys do not care, they got paid, and then onto the next person with open pockets to them.