USCIS Update regarding AOS applications filed from July-August, 2007

lawrence01 · Oct 4, 2007

additional references regarding same topic, click here.

these are all base on the meeting between aila and uscis. expect to see the official press release on the uscis website in the coming days.

suzanne4, RN · Oct 4, 2007

Thank you very much for posting this, expected that the numbers would be much higher than the 300,000 number that we had been hearing about for so long.

lawrence01 · Oct 4, 2007

Yes, 300,000 was really a very conservative initial estimate. We've always suspected that but some don't want to believe us. Even my personal guess of at least an additional 150,000 for a total of 450,000 turned out to be a very conservative estimate as well.

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For those people who are trying to figure out what these news means; it means that those who filed AOS in the U.S. on those months should not expect to get their green cards for a very, very long time. That is why I said before that they should focus their attention to when they'll get their EAD instead (and not everyone filed the EAD together w/ their I-140 and I-485) because they will be living off the EAD and renewing it annually for years to come depending on the ultimate actual official figures to be posted by USCIS. The initial reports haven't really specifically partitioned the AOS per specific category but only that the majority who did are under EB2 and EB3 if I interpreted it correctly.

This also mean that filing for AOS would not be allowed for a long time like we have been saying lately. The 2 years estimate we've been telling was base on the 300k initial report but now that it turns out to be much higher, that 2 years guess also turned out to be a very conservative view as well. Not until all the backlog has been processed and completed will they allow people to file for AOS again and those who filed for AOS last July and August will have to wait for years before they expect their green card.

The silver lining I could think of is that the yearly visa quotas will now be prioritizing those already in line, particularly those under CP and those w/ older Priority Dates.

Almost all who filed for AOS before retrogression (Nov. 2006) actually already received their green cards and only a minority still don't have one and these are those w/ RFEs, etc... so, the visa numbers to be made available would definitely go to those under CP and esp. to those w/ earlier PDs. Not sure if the 9,800 or so visa numbers per country under EB3 are enough though but one thing is for sure, countries w/ high demand for visas will fair lesser to those countries w/ relatively low demand.

*FYI: The stand-alone I-485s are those who already filed for their I-140 petitions a long time ago. These are those primarily under the H1B. While those 40,000 mentioned that filed the I-140 and I-485 concurrently are "new cases" and since it was filed only in July, then we can already guess that majority of these "new cases" are nurses, as I personally do not know any other EB workers/professionals that do not need the very long Labor Certification process aside from Schedule As. And as many of us know already, nurses are lumped now w/ the rest of the workers/professionals under EB3, so that's 320,000+40,000=360,000. Not sure where the 400,000 goes and what % of the 360,000 are under EB3 but we'll know more once USCIS releases official figures.

suzanne4, RN · Oct 4, 2007

With so many waiting for the green card for more than a year since the retrogression started, expect that those that have been waiting under CP will get their visas before those that just applied with the I-485. You are going to see the PD play an important part now, not seen so much in the past.

And it is only fair. Someone that has been waiting 18 months already out of the country should get their green card before the person that just started the process a couple of months ago, if they did not have the PD date from a couple of years ago, as most have had under this I-485 petition submission. Only about 40,000 submitted all at the same time and did not already have the I-140 previously submitted.

Snowstorm · Oct 5, 2007

Yes, 300,000 was really a very
*FYI: The stand-alone I-485s are those who already filed for their I-140 petitions a long time ago. These are those primarily under the H1B. While those 40,000 mentioned that filed the I-140 and I-485 concurrently are "new cases" and since it was filed only in July, then we can already guess that majority of these "new cases" are nurses, as I personally do not know any other EB workers/professionals that do not need the very long Labor Certification process aside from Schedule As. And as many of us know already, nurses are lumped now w/ the rest of the workers/professionals under EB3, so that's 320,000+40,000=360,000. Not sure where the 400,000 goes and what % of the 360,000 are under EB3 but we'll know more once USCIS releases official figures.

I guaranty that out of 320,000 new petitions at least 200,000 were filed by people from India. So, they are the ones who will be affected by the retrogression, as well as people from China.

Do you really believe that there were 40,000 foreign-born, US-licensed registered nurses with job offers from the US employers on temporary visas present in the US between July 2, 2007 and July 31, 2007?

lawrence01 · Oct 5, 2007

I guaranty that out of 320,000 new petitions at least 200,000 were filed by people from India. So, they are the ones who will be affected by the retrogression, as well as people from China.
Do you really believe that there were 40,000 foreign-born, US-licensed registered nurses with job offers from the US employers on temporary visas present in the US between July 2, 2007 and July 31, 2007?

No, not really. I only mentioned that the probability is high that majority of those are probably nurses or those under EB1, as these are the only ones (that I know of) that can file an 1-140 on such a short notice since they do not need the long Labor Certification Process. The announcement for the ability to file AOS under EB was only announced on the latter half of June, 2007 and there were no prior inclinations that it will be made available. It was a surprise, really. So much of a surprise, that USCIS threaten to pull it out since as it turns out there really is no visa to make filing for AOS viable in the 1st place. This is the same way that you made an educated guess that out of the 320,000, majority will probably be from India. And I agree.

However, we really can't know for sure until USCIS releases their official figures. Of course, there is always that possibility that a worker under H1B has just decided to file his I-140 just in July but I think the majority filed their I-140s way before to get a PD as soon as possible and it does take time for Labor Certification for those not exempted from it.

Anyway, in my opinion, it doesn't really matter much, on what comprises that 40,000 since everyone are lumped together under EB3, nurse or not. Those under the 320,000 will get their green cards earlier than the 40,000 that just filed their I-140 in July since they will be having an earlier Priority Date than the ones that just filed in July.

And yes, there were a lot that went to the US (via tourist visa) somewhere in the last week of June to the 1st week of July so that they can file their I-140 by July 31. 2007 and their I-485 by Aug 17, 2007 (they are still considered concurrently filed) and only workers exempt from Labor Certification and non-union hospital employers can do these.

Snowstorm · Oct 5, 2007

Actually, for those who need Labor Certification approval from DOL, priority date is established by the date when LC was files, not by the date when I-140 was filed. Considering the fact that DOL just finished backlog elimination, there are a lot of people who filed their LC in 2003, 2004, 2005 and just got their LC approved this year. So, some could file I-140 and I-485 concurrently in July, but if LC was filed in June 2005 and got approved in June 2007, the priority day for those folks will be June 2005.

For non-unionized hospitals there is a 42-44 day rule (42 days if posted on Monday, and 44 days when posted on any other day). 10 business days (Mon-Fri) employment notice posting plus 30 days waiting period. In order to file I-140 on July 30, 2007 employers had to post notices not later the June 18, 2007. On the other hand side, July visa bulletin was published just in mid-June. So, not everybody posted notices on time to be able to file by July 30,2007.

lawrence01 · Oct 6, 2007

Actually, for those who need Labor Certification approval from DOL, priority date is established by the date when LC was files, not by the date when I-140 was filed. Considering the fact that DOL just finished backlog elimination, there are a lot of people who filed their LC in 2003, 2004, 2005 and just got their LC approved this year. So, some could file I-140 and I-485 concurrently in July, but if LC was filed in June 2005 and got approved in June 2007, the priority day for those folks will be June 2005.

Well, that's the point I'm driving at. Majority will have a priority date earlier than those who just filed their I-140 (for nurses) in July, so these people will be the first ones to get their green cards in such a time as when there is a backlog or retrogression. Earlier PDs gets the first crack first.

For non-unionized hospitals there is a 42-44 day rule (42 days if posted on Monday, and 44 days when posted on any other day). 10 business days (Mon-Fri) employment notice posting plus 30 days waiting period. In order to file I-140 on July 30, 2007 employers had to post notices not later the June 18, 2007. On the other hand side, July visa bulletin was published just in mid-June. So, not everybody posted notices on time to be able to file by July 30,2007.

I'm not sure about these but I was in an impression that it is the union hospitals that has a longer wait time compared to non-unions that is why some law firms has already fore-warned that nurses in union hospitals will not be able to file for I-485 on time and not the non-union ones. I think Suzanne will know more about this.

lawrence01 · Oct 6, 2007

For non-unionized hospitals there is a 42-44 day rule (42 days if posted on Monday, and 44 days when posted on any other day). 10 business days (Mon-Fri) employment notice posting plus 30 days waiting period. In order to file I-140 on July 30, 2007 employers had to post notices not later the June 18, 2007. On the other hand side, July visa bulletin was published just in mid-June. So, not everybody posted notices on time to be able to file by July 30,2007.

It is to my understanding that non-union hospitals can actually go around these if they were some that posts job postings all-year round and I guess they can also this regarding prevailing wage surveys therefore they just have to wait for the 30 days.

This is not so for union hospitals and some law firms went ahead to say beforehand that they won't qualify since they can't possibly meet the deadline.

*Excerpt from Shusterman August newsletter:

"Important Caveats:

For registered nurses and physical therapists who work for unionized facilities, the DOL regulations provide that the employer must give the bargaining representative a notice that it intends to petition the RN or PT for permanent residence, and then wait 30 days before submitting the I-140. The limited filing period provided for in the USCIS Update does not allow sufficient time for most unionized employers to follow this procedure. Therefore, for the most part, it is RNs and PTs who have an offer of employment from a non-union facility who may take advantage of the July 17 USCIS Update. Even with a non- unionized facility, the DOL regulations provide that the employer post the job vacancy notice for 10 days (Monday through Friday only according to USCIS' previous practice) and then wait 30 days before submitting the I-140. Savvy employers keep such notices posted year round."

Reference: http://shusterman.com/aug07.html

Snowstorm · Oct 6, 2007

http://www.uscis.gov/files/article/afm_ch22_021406.pdf

Go directly to page 3, "Petitions Filed On Or After March 28, 2005". You are right, if they kept a notice on the board all year round, they could avoid the waiting period. My hospital didn't, they had posted it on June, 18 and filed I-140 on July 30.

I bet 90% of the hospitals don't keep those notices on the board all year round.

lawrence01 · Oct 6, 2007

http://www.uscis.gov/files/article/afm_ch22_021406.pdf
Go directly to page 3, "Petitions Filed On Or After March 28, 2005"

Yes, what about it? It's basically the same thing right?

I think it was already explained that there are actually ways to go around these and shave some waiting time. At least for non-union hospitals.

I'm not really sure where you are heading or driving at but you are a nurse who filed in July 30 or 31 aren't you? As is some more posters here. So there are nurses that just filed their I-140s just in July.

When did you arrive in the US if you don't mind?

Anyway, the impt. thing is whether or not someone just arrived in late June or have been in the US for more than 30 days is that if they were able to file their I-140 and I-485 in late July then that's their PD if they are nurses such as you are and are part of the 40,000 and there are many of you (nurses or not) and there are more that are actually ahead of you. The 320,000 will be ahead of the 40,000 in most cases and this is only the point I was trying to give as many are asking on when will they get their green cards and I think no one can argue with the notion that it might be awhile before they get their green cards. Priority Dates will play a more impt. role now.