Expediting Your Employment Based Green Card Application
If there is one thing that is certain in green card
processing, it is that nothing is certain. Those of you who
have spoken with me directly know that I like to use the
analogy of astronomers looking at stellar objects. They
don’t see what is happening there now, they see only what
happened in the past. So it is with green card processing.
The information we receive is only information about the
past, not the present.
Because often we do not know what actually is happening at this moment, we make the mistake of trying to extrapolate future events from immediate past events. If you want to expedite the processing of your green card, then you need to look at the entire picture, not just the immediate past. This article is the first in a series dealing with the subject of what you can do to speed up your green card processing.
There are two circumstances that exist at the present time that bear directly on this subject: adjustment of status processing times and Visa Bulletin retrogression of EB visa availability. Before moving on to specific techniques for speeding things up, it is necessary to gain a better understanding of these two circumstances.
Adjustment of Status processing times
Adjustment of status processing times have always been volatile. Fifteen years ago, when “direct mail” filings of AOS applications were first being accepted by INS Service Centers, the initial processing times were in the neighborhood of three to four months. Backlogs began to grow quickly and within two years those times ballooned out to eighteen to twenty four months. By 1999, the fastest Service Center was taking about 18 months and the slowest was taking about four years. In 2000, the INS Service Centers stopped processing AOS cases entirely between February and December, though they refused to formally acknowledge that fact for months..
Processing times continue to lag far behind the stated times shown in the service center monthly updates. There is a reason for this. As part of the AC21 legislation, Congress included a "sense of the Congress" resolution that adjustment of status processing should not take longer than 180 days. The CIS hasn't hit that mark for anything other than a handful of cases in more than a decade. Rather than post their actual processing times, both the CIS Ombudsman and the DHS Inspector General found that the CIS has been using "cycle times" (goals). The actual processing times are never shown.
It is anyone's guess as to how long they are really taking. We know that prior to the filing surge in mid-2007, the CIS had an estimated backlog of around 300,000 to 350,000 pending employment based adjustment of status cases. The CIS has estimated that they received another 300,000 to 350,000 EB AOS cases during the surge.
It is worth mentioning that the CIS has never adjudicated more than 85,000 EB AOS cases in a single fiscal year - though this year it is possible they may process as many as 110,000 if they go all out. Keep this fact, together with the size of the backlog, in mind when trying to estimate how long it will take them to get to your case when your priority date becomes current.
The CIS Ombudsman has observed and criticized the CIS for their practice of processing more recently filed cases in favor of those that have been pending longer. He has also criticized them for plucking easier cases out of the line and adjudicating them first. The one thing that we do know is that they are not processing cases in the order in which they were filed.
It is worth taking a moment to study the mechanics of AOS processing. When a combined processing package is filed, the I-140 is sent to the I-140 unit for a quick review. If they find that it is obviously not a good petition, then the whole package is rejected. Otherwise, they throw the I-140 in line with the other petitions for eventual adjudication.
Generally speaking, due to storage space limitations at the service centers, if a file is not going to go to adjudication within 90 days, it is sent to the CIS national storage facility in Virginia. As the time for adjudication approaches, service center personnel will request that the file be sent back to the service center. Once returned, it will go back into the queue of files awaiting adjudication.
Right now, there are a substantial number of combined processing cases that have been sent to Virginia for indefinite storage. These are all of the Indian and Chinese EB second and third preference cases, as well as all worldwide third preference cases that were filed while visa numbers were available, but can’t be closed out because the cut-off dates retrogressed. These files will remain in Virginia until the Visa Bulletin cut-off dates advance beyond the individual priority dates for the files.
Of course, applicants who have not yet filed for adjustment of status must wait until their priority dates become current before they will become eligible to even file. An application for adjustment of status will not be accepted unless the applicant’s priority date is current when the application is filed.
Consular processing
Normally, when a case is designated for consular processing, the interval between I-140 approval and the final immigrant visa interview abroad is six months or less. If a visa number is not available immediately, but the file is otherwise complete, the visa post will hold onto it until the Visa Bulletin cut-off dates advance. When they are notified that the Visa Bulletin cut-off date has advanced beyond the applicant’s priority date, they will order an immigrant visa number and schedule the applicant for an interview in the month following the month in which the applicant’s priority date becomes current. Thus, if the May Visa Bulletin (released in mid-April) shows that the applicant’s priority date will become current in May, the visa post will order a visa number and schedule the applicant for an interview in June.
Strategies
With these facts in mind, let’s proceed to examine strategies for expediting green card processing. The “best” strategy always depends on personal preferences, within the array of choices offered. Let’s look at some of the more common situations:
Case 1: Combined processing AOS applicant with a “current” priority date.
These cases are moving pretty quickly, at least for now. All things being equal, the best choice is to stand pat and wait. There would not appear to be any advantage to switching this application to consular processing.
Case 2: Combined processing AOS applicant with a backlogged priority date.
These applicants should consider doing consular processing via an AC I-140. This puts them in a position to receive immigrant visas shortly after their priority dates become current. The alternative is putting your trust in the CIS to act promptly and efficiently and close out your case after becoming aware of visa availability for you.
[Note: Cases 1 & 2 assume that the applicant’s I-140 has been approved.]
Case 3: AOS applicant to be who is unable to file because his priority date is not current.
The applicant should file the I-140 immediately and designate it for consular processing. If his priority date becomes current before the I-140 is approved, or at any time thereafter, he can always file an I-485 and have it merged with the pending (or approved) I-140 petition. There is no time penalty in doing this.
On the other hand, if the applicant’s priority date does not become current until after the file has gone to the consulate, then the applicant is far better off waiting for the consular interview. Generally speaking, in these circumstances, the consular interview will occur less than two months after the earliest date the same applicant could even file for AOS.
Case 4: AOS applicant who filed before combined processing and is still waiting for an adjudication.
This applicant is another excellent candidate for AC I-140 processing abroad. If the applicant’s priority date is current, he should receive his immigrant visa within six months of initiating the AC I-140 process. If it is not current, then he can reasonably expect to be interviewed within 60 days of his priority date becoming current.
The concept of AC I-140 processing has been around for decades. It became very popular about five years ago in response to the then outrageous AOS processing times. While conditions are not yet as bad as they were back then, they are deteriorating rapidly.
A troubling aspect of all of this is the idea that there may only be a short, “window” when visa numbers will become available for most or all of the current applicants. If the CIS does not adjudicate and close out their cases before the window closes, it could be at least another year before these applicant again become eligible to get their green cards. People who are set to go at consular posts, on the other hand, will be in the perfect position to take advantage of this opportunity.
Finally, no matter what you read on the Internet, parallel AOS and AC I-140 processing is perfectly legitimate and the applicant does not have to abandon his AOS application to take advantage of the consular processing opportunity. In fact, the State Department has issued a formal memorandum instructing visa officers that “I-140 portability” applies to those AC I-140 applicants who have had AOS applications pending for at least six months.
Because often we do not know what actually is happening at this moment, we make the mistake of trying to extrapolate future events from immediate past events. If you want to expedite the processing of your green card, then you need to look at the entire picture, not just the immediate past. This article is the first in a series dealing with the subject of what you can do to speed up your green card processing.
There are two circumstances that exist at the present time that bear directly on this subject: adjustment of status processing times and Visa Bulletin retrogression of EB visa availability. Before moving on to specific techniques for speeding things up, it is necessary to gain a better understanding of these two circumstances.
Adjustment of Status processing times
Adjustment of status processing times have always been volatile. Fifteen years ago, when “direct mail” filings of AOS applications were first being accepted by INS Service Centers, the initial processing times were in the neighborhood of three to four months. Backlogs began to grow quickly and within two years those times ballooned out to eighteen to twenty four months. By 1999, the fastest Service Center was taking about 18 months and the slowest was taking about four years. In 2000, the INS Service Centers stopped processing AOS cases entirely between February and December, though they refused to formally acknowledge that fact for months..
Processing times continue to lag far behind the stated times shown in the service center monthly updates. There is a reason for this. As part of the AC21 legislation, Congress included a "sense of the Congress" resolution that adjustment of status processing should not take longer than 180 days. The CIS hasn't hit that mark for anything other than a handful of cases in more than a decade. Rather than post their actual processing times, both the CIS Ombudsman and the DHS Inspector General found that the CIS has been using "cycle times" (goals). The actual processing times are never shown.
It is anyone's guess as to how long they are really taking. We know that prior to the filing surge in mid-2007, the CIS had an estimated backlog of around 300,000 to 350,000 pending employment based adjustment of status cases. The CIS has estimated that they received another 300,000 to 350,000 EB AOS cases during the surge.
It is worth mentioning that the CIS has never adjudicated more than 85,000 EB AOS cases in a single fiscal year - though this year it is possible they may process as many as 110,000 if they go all out. Keep this fact, together with the size of the backlog, in mind when trying to estimate how long it will take them to get to your case when your priority date becomes current.
The CIS Ombudsman has observed and criticized the CIS for their practice of processing more recently filed cases in favor of those that have been pending longer. He has also criticized them for plucking easier cases out of the line and adjudicating them first. The one thing that we do know is that they are not processing cases in the order in which they were filed.
It is worth taking a moment to study the mechanics of AOS processing. When a combined processing package is filed, the I-140 is sent to the I-140 unit for a quick review. If they find that it is obviously not a good petition, then the whole package is rejected. Otherwise, they throw the I-140 in line with the other petitions for eventual adjudication.
Generally speaking, due to storage space limitations at the service centers, if a file is not going to go to adjudication within 90 days, it is sent to the CIS national storage facility in Virginia. As the time for adjudication approaches, service center personnel will request that the file be sent back to the service center. Once returned, it will go back into the queue of files awaiting adjudication.
Right now, there are a substantial number of combined processing cases that have been sent to Virginia for indefinite storage. These are all of the Indian and Chinese EB second and third preference cases, as well as all worldwide third preference cases that were filed while visa numbers were available, but can’t be closed out because the cut-off dates retrogressed. These files will remain in Virginia until the Visa Bulletin cut-off dates advance beyond the individual priority dates for the files.
Of course, applicants who have not yet filed for adjustment of status must wait until their priority dates become current before they will become eligible to even file. An application for adjustment of status will not be accepted unless the applicant’s priority date is current when the application is filed.
Consular processing
Normally, when a case is designated for consular processing, the interval between I-140 approval and the final immigrant visa interview abroad is six months or less. If a visa number is not available immediately, but the file is otherwise complete, the visa post will hold onto it until the Visa Bulletin cut-off dates advance. When they are notified that the Visa Bulletin cut-off date has advanced beyond the applicant’s priority date, they will order an immigrant visa number and schedule the applicant for an interview in the month following the month in which the applicant’s priority date becomes current. Thus, if the May Visa Bulletin (released in mid-April) shows that the applicant’s priority date will become current in May, the visa post will order a visa number and schedule the applicant for an interview in June.
Strategies
With these facts in mind, let’s proceed to examine strategies for expediting green card processing. The “best” strategy always depends on personal preferences, within the array of choices offered. Let’s look at some of the more common situations:
Case 1: Combined processing AOS applicant with a “current” priority date.
These cases are moving pretty quickly, at least for now. All things being equal, the best choice is to stand pat and wait. There would not appear to be any advantage to switching this application to consular processing.
Case 2: Combined processing AOS applicant with a backlogged priority date.
These applicants should consider doing consular processing via an AC I-140. This puts them in a position to receive immigrant visas shortly after their priority dates become current. The alternative is putting your trust in the CIS to act promptly and efficiently and close out your case after becoming aware of visa availability for you.
[Note: Cases 1 & 2 assume that the applicant’s I-140 has been approved.]
Case 3: AOS applicant to be who is unable to file because his priority date is not current.
The applicant should file the I-140 immediately and designate it for consular processing. If his priority date becomes current before the I-140 is approved, or at any time thereafter, he can always file an I-485 and have it merged with the pending (or approved) I-140 petition. There is no time penalty in doing this.
On the other hand, if the applicant’s priority date does not become current until after the file has gone to the consulate, then the applicant is far better off waiting for the consular interview. Generally speaking, in these circumstances, the consular interview will occur less than two months after the earliest date the same applicant could even file for AOS.
Case 4: AOS applicant who filed before combined processing and is still waiting for an adjudication.
This applicant is another excellent candidate for AC I-140 processing abroad. If the applicant’s priority date is current, he should receive his immigrant visa within six months of initiating the AC I-140 process. If it is not current, then he can reasonably expect to be interviewed within 60 days of his priority date becoming current.
The concept of AC I-140 processing has been around for decades. It became very popular about five years ago in response to the then outrageous AOS processing times. While conditions are not yet as bad as they were back then, they are deteriorating rapidly.
A troubling aspect of all of this is the idea that there may only be a short, “window” when visa numbers will become available for most or all of the current applicants. If the CIS does not adjudicate and close out their cases before the window closes, it could be at least another year before these applicant again become eligible to get their green cards. People who are set to go at consular posts, on the other hand, will be in the perfect position to take advantage of this opportunity.
Finally, no matter what you read on the Internet, parallel AOS and AC I-140 processing is perfectly legitimate and the applicant does not have to abandon his AOS application to take advantage of the consular processing opportunity. In fact, the State Department has issued a formal memorandum instructing visa officers that “I-140 portability” applies to those AC I-140 applicants who have had AOS applications pending for at least six months.
Copyright© 1993 -2008 - Gotcher & Gotcher, LLP - All Rights Reserved