Opportunities Come to Those Who are Prepared

Author: Jing Amy Feng

Every immigrant to the United Stated knows to love and hate the visa bulletin. When it moves forward, which means the waiting period shortens, there is an influx of applicants, but as soon as there is any retrogression, the number of applicants drastically decreases. As seasoned immigration lawyers, our experience has shown that following this trend may not be the best idea. In fact, we believe that it is better to do the opposite; that is better to actively prepare and file your petition/application during retrogression. 

The benefits of filing during retrogression are the following:

• You will have plenty of time to prepare materials and evidence for your case;

• Your recommenders will more likely be free (and you can avoid requesting letters of recommendation on short notice). This will generally create better results for recommendations;

• Since there are generally fewer applicants, there is less competition for approvals;

• It is also likely that immigration lawyers have less cases to deal with, thus placing more attention on your case;

• The decrease in clients could also result in a better rate for the case;

These benefits would not be possible during the rush that usually occurs when the visa bulletin moves forward. More importantly, cases such as EB-1, NIW, and PERM require at least 2 months to prepare. So, in many cases, those who apply during the rush may not even have their cases ready until retrogression hits. This may lead to missing out on an important time slot opportunity.

Here is an example: Professor Jin from Korea was a very mellow person, never in a rush. When it came to immigration, he was the same. His H-1B will reach its 6-year expiration date in September 2012. He would have to file his case within a specific time frame during the H-1B 6-year period in order to get an extension on his H-1B beyond 6 years. In January 2012, only a few months before the H-1B expiration date, Prof. Jin, with the help of his university, decided to file for PERM. His idea was that by around June, he could have his PERM approved. With that, he would file for I-140 with premium service, and by July, have that approved too. Once his I-140 was approved, he could apply for I-485 and get an EAD card to continue working after his H-1B expires.  

However, things did not go as smoothly as he planned. Prof. Jin’s PERM was audited by the DOL. (A PERM audit could tremendously delay the PERM process, typically between a year to 18 months.) This threw off Prof. Jin’s game plan. Thus, in April 2012, Prof. Jin’s university contacted lawyer Amy Feng, inquiring about whether there was still any possible way for Prof. Jin to continue working after his H-1B expired.  After careful analysis of Prof. Jin’s background, Amy advised that Prof. Jin skip the PERM process and file EB-2 (NIW). Because Prof. Jin was born in Korea, under the processing conditions at the time, he could file NIW and I-485, concurrently. As long as the application was filed before July, the work authorization portion of the I-485 (the I-765) would be approved before the H-1B expired.

About 3 months before the July deadline, even with constant reminders from Amy, Prof. Jin barely started preparing his NIW recommendation letters. As time progressed, there was little to no development in Prof. Jin’s case. On June 15, 2012, USICS announced the visa bulletin for July—there would be a wait time for filing I-485 for Korean-born applicants.  This meant that Prof. Jin could not concurrently file his NIW and I-485 on or after July 1, 2012.  Once again Prof. Jin’s plans were in jeopardy as it was almost impossible to get everything ready within 15 days. Prof. Jin’s chances of gaining work approval looked grim. The only possibility left was if Prof. Jin worked together with Amy, and filed both NIW and I-485 within the 15 days left in June. It would have to be a record smashing effort, but it was the only option for Prof. Jin. After working day and night, Amy and Prof. Jin finally finished a speedy, yet high-quality case on time. With any luck, Prof. Jin’s case should be approved and he will be able to continue working in the United States.

Prof. Jin just barely made the deadline. We can all learn a good lesson from this case. If not for his lawyer’s extraordinary efforts, Prof. Jin might have been jobless and on his way home to Korea. If Prof. Jin had planned ahead, it would have saved a lot of time and needless worrying. Most importantly, he could have avoided this dire situation. For Korean-born aliens, the visa number for EB-2 has been current under most circumstances. However, from June 2012 to October 2012, the visa number was backlogged, which meant that Korean-born aliens were not eligible to submit I-485 along with their I-140. Although the visa number will become current in November 2012, it may retrogress in the near future.  So, it is beneficial to file your I-140 as soon as possible since the sooner you submit your I-140, the earlier your priority date will be. This way when the visa bulletin moves forward, you may be eligible to submit your I-485. This also applies to EB-1, because in the near future EB-1 may have a backlog too. It is advisable for EB-1 applicants to think ahead as well.

In conclusion, these changes in the visa bulletin affect the number of applicants. During times of retrogression, there are fewer applicants. The decrease in applicants will then help the visa bulletin move forward.  That, in turn, will increase the number of applicants, leading to retrogression. It is a game of supply and demand. Our experience tells us that, no matter what, it is always beneficial to submit your I-140 application as soon as possible, provided that you have sufficient evidence to support the same.

Attorney Jing Amy Feng is a Partner of FYZ Law Group LLP. (www.fyzlaw.com)  She has extensive experience working with visa applications and employment/business immigration, with a proven record of many successful NIW, EB-1, H-1B, PERM cases.  She may be reached at @fyzlaw.com">jfeng@fyzlaw.com 

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