On July 17, 2007, DOS announced that the Visa Bulletin for July 2007 released on June 12 is valid. Visa numbers are available for all applicants in all employment-based immigration categories except “other workers.” Moreover, Visa Bulletin for August 2007 was released on the same day. Visa numbers are “Unavailable” for all applicants for August 2007.

Currently, numerous applicants want to file their I-140s and I-485s to take advantage of the availability for July 2007. We received countless inquiries regarding filing I-140 and I-485 applications. When facing a pressing deadline, it is extremely important to prepare and file the cases correctly. Therefore, we compiled this FAQ to address issues in filing I-485s with a hope it will help the readers to successfully file their cases.

The first part of this FAQ focuses on operational questions specifically for the current situation. The second part focuses on general and basic questions about I-485 application.

Part 1

1. What is the deadline to file I-485 applications for July Visa Bulletin?
USCIS extended the deadline to file I-485s to August 17. In other words, one needs to file his or her I-485 no later than August 17. This is regarded as a remedy for the July Visa Bulletin debacle.

2. I heard I-140s must be filed before August 1 if one wants to file I-485 this time, is that right?

Yes, that’s correct. It is our common understanding for the point of time. AILA is contacting USCIS to get a confirmed clarification on this regard. Before we receive any further notice from USCIS, we suggest you take a cautious stance and file your I-140 application before August 1, although we noticed that different attorneys have different opinions regarding this issue.

3. Why should I-140s filed before August 1?
There two considerations: One is about priority date, and the other is about the procedure. We are talking about the Visa Bulletin for July, 2007. Your I-140 application must be filed in July, 2007 to kick in the extended benefit to file I-485 before August 18 to take advantage of the extension. Otherwise, you cannot submit your I-485 on or after August 1st at all as you do not have a priority date that satisfies the July visa bulletin. Even if your case is based on labor certification, the filing procedure requires you to file I-140 before August 1. If your I-140 is filed after July, there is no legal base for you to file the I-485 application to use the July visa bulletin.

4. The USCIS new fee schedule will take effect on July 30, 2007. How would that influence I-485 and other applications?
The current filing fee schedule will remain to all I-485s filed no later than August 17, 2007. The new fee schedule that becomes effective on July 30, 2007, will apply to all other applications like I-140 filed on or after July 30, 2007.

5. If I file EAD and Advance Parole together with my I-485 after July 31, what filing fees will apply?
If EAD and Advance Parole are filed together with your I-485, you may pay the old filing fee, $180 for EAD and $170 for Advance Parole. However, if they are filed separately after July 30, you need to pay the new fees.

6. USCIS “Direct filing” procedure will take effect on July 30, 2007, which requires I-485 application to be filed to either NSC or TSC based on where the applicant resides. After July 29, should I follow this rule when I file my I-485?

You may use the new rule after July 29, 2007.

7. What are the critical dates we should pay attention when we file the cases?
There are three critical dates you need to pay attention:
1). July 30 is the date when the new USCIS filing fee schedule and the “direct filing” procedure take effect;
2). July 31 is the last date you can file your I-140 if you want to file I-485 this time;
3). August 17 is the last date that you may apply I-485 which apply to the July employment-based immigration visa bulletin;

8. Regarding these critical dates, will USCIS make judgments based on the post mark or actual time the application is received by USCIS?
You need to make sure your application is received by USCIS by the deadline. For example, I-485 applications must be received by USCIS by August 17. However, there is an exception for the effective date of filing fees. According to a memo USCIS sent to AILA, it’s based on when you send out your application, which is indicated by the post mark or other receipt proof if you use other carriers, such as FedEx, UPS or DHL. In other words, if you send out your application before July 30, you should use the old filing fee.

9. I saw your firm posted an article on July 16, 2007 and successfully predicted USCIS may accept I-485 cases in July, 2007. How could you make such a prediction while other attorneys and AILA try to dispel rumors?
This prediction is based on a thorough analysis of the situations and immigration policy making processes. We had been closely monitoring the whole event, and found some clues for the change before July 16. In addition, we have some credible information sources which showed us some signs of change before hand.

10. I saw your firm suspended case intake in June in order to focus on your existing clients. Are you taking new cases now?
Yes, we are still taking new cases now. However, as the deadline is approaching, we hope you can have all your documents ready by July 26 because we need to file our I-140 cases before August 1, 2007.

11. Do you provide a free evaluation now?

Yes, we provide a free evaluation for inquiries by e-mail from the people who are potential clients to us. Please e-mail your inquiry to @hooyou.com">info@hooyou.com. However, because of the time pressure, the potential clients and we need to decide quickly for the best interest for the potential clients and us.

12. I am preparing my application by myself, but I have no confidence when I write the petition letter. Can I retain your firm to write the petition letter?

Yes. We understand that some applicants cannot find an experienced attorney in such a short period of time and they want to do the application by themselves. Petition letter is a vital part of NIW and EB-1 cases. We provide the services to write the petition letter if you have all other materials ready. We usually deliver the work within two days.

13. If I can not file my I-140 case before August 1, 2007, may I apply my I-140 case in August, 2007?

Yes, but you can not apply I-485 in August, 2007 and need to wait for your visa number available.

14. When do you predict the visa numbers will be available again?

DOS will release the new immigrant visa numbers for 2008 around September 14, 2007 for October Visa Bulletin. Whether your visa number is available depends on your EB preference and your country of birth. For EB-1 category, we predict that it should be available for all countries. For EB-2, the visa number should be current for people who were born in a country other than India and China. For the people who were born in India and China, the visa number will have a long backlog. For EB-3 category, there will be a worldwide backlog.

15. Which is better, rushing in the deadlines with a poor preparation or having a well prepared petition?

It depends on many factors. Please consult an experienced attorney for an analysis.

16. I cannot get an appointment for medical examination before August 17. Can I submit my I-485 application before the deadline and submit medical examination report later?

No. USCIS has indicated I-485 application package without medical examination report will be rejected.

Part 2

1. Between I-140 and I-485, which one is the major step on my road to green card?

I-140 is the major step. For most of the cases, approval of I-485 is a matter of time if your I-140 petition is approved and there are no bad acts on your part.

2. My I-140 is pending, is it possible that my I-140 is denied but my I-485 is approved?

No. Approval of I-485 is based on an approved I-140 petition. If your I-140 is denied, your I-485 is denied automatically.

3. If my I-140 is approved, is it possible that my I-485 denied?

Yes, it’s possible, but the chance is low. We will discuss the circumstances where an I-485 may be denied in question 5.

4. If my I-140 is approved, is it likely that my I-485 will be denied?

Yes, but the chance is very low for the most cases.

5. What are the grounds for I-485 denial if my I-140 is approved?

The followings are the grounds for an I-485 denial.
a. Some crimes committed by the applicant.
b. The applicant is out of status or illegally worked for over 180 days.
c. If the I-140 is employer-sponsored, the applicant changes job before I-485 has been pending for 180 days.
d. The applicant drastically changes occupation or job field.
e. The applicant travels abroad without Advance Parole (H/L visa or status is excepted).
f. The applicant’s failure to RFE or fingerprint.

6. I am in F-1 OPT and my H-1B will be effective on October 1, 2007. I plan to file I-485 in July. I have a trip abroad in September, may I apply H-1B visa in a US consulate abroad and come back with H-1B visa?

Yes, you can. You can apply an H-1B visa and come back with it

Does my trip affect my I-485?
It depends. If you travel and come back with H-1B visa, your I-485 is abandoned. If you travel come back with Advance Parole, your I-485 is still valid.

In the above situation, what should I do?

It’s a dilemma. If you travel and come back with H-1B visa, your I-485 is abandoned; if you travel and come back with Advance Parole, you are in parolee status, and you lose your H-1B status. You should evaluate the benefits and drawbacks of each situation. Our suggestion is that you travel outside the US after you are in H-1B status. You may come back with an H-1B visa and still keeps your I-485.

7. I will apply I-485, EAD and Advanced Parole in July. If I use my EAD to work after I get it, what is my status?

You are in I-485 pending status.

8. If I use an Advanced Parole to come back to the US, what is my status?

You are in Parolee status.

9. Is a parolee a valid legal status?

It is a legal stay pending your I-485.

10. What if my I-485 is denied if I am in parolee status?

You don’t have legal stay after I-485 is denied, and have to leave the U.S.

11. When should I use EAD or Advanced Parole?

We suggest you use EAD or Advance Parole only after your I-140 is approved. You will be in I-485 pending status if you use EAD or in parolee status if you use Advance Parole for reentry. But if your I-140 is approved, the chance of your I-485 being denied is very low if you follow the USCIS immigration regulations carefully. Then, it’s relatively safe to use EAD or Advance Parole after your I-140 is approved.

12. What are the original documents required for filing I-485?

a. Medical examination report; and
b. Your photos.

13. Do I need to submit a notarized copy of my birth certificate?

No, a photo copy is fine

14. Do I need to submit a notarized copy of my marriage license?

No, a photo copy is fine.

15. Because of the tax treaty between the US and China, I did not file my Federal Tax Return in 2005 and did not pay a tax. Is that a problem for my I-485 application?

No.

16. If I file I-485 in July and there is visa retrogression in the near future, will the USCIS approve my I-485?

Yes, when your visa number is available in the future and your security check is cleared, USCIS will approve your I-485.

17. What is the benefit to have my I-485 pending while there will be visa retrogression in the near future?

With a pending I-485, you and your spouse can get EAD and Advance Parole, which provides great convenience to work and travel abroad.

In addition, even there is visa retrogression in the near future, USCIS will process your fingerprint and security check. When visa numbers are available for you again after the future retrogression and security check is cleared, your case can be approved.

18. How long does it take for USCIS to process I-485 cases?

It depends. If immigration numbers are available and your security check (name check) is cleared, it may take about 6 months to one year for USCIS to approve your I-485 case. Security check may delay the processing.

19. What is the next step after filing the I-485?

Waiting for fingerprint, FBI name check result and USCIS to approve your case.

20. How long does the name check take?

It depends, ranging from a few months to a couple of years.

21. My wife is abroad and I plan to apply I-485 in July. How can she get a green card?

She may come back to the US and file I-485 to join you. Alternatively, if she stays outside the US for a long time, when your I-485 is approved, she can get an immigrant visa through Consular Processing in a US consulate in the country of her residence or country of her birth.

22. My wife is outside the US and will come back to the US in September. I plan to apply I-485 in July. If there is visa retrogression for me in September, can she apply I-485 then as a derivative beneficiary?

No.

23. I will apply I-485 and am single now. If I get married later, can my spouse be benefited from my I-485?

It depends. Before your I-485 is approved, she can apply I-485 as a derivative beneficiary of your petition. After your I-485 is approved, she can on longer apply I-485 as a derivative beneficiary of your petition.

24. When is it too late to get married for the purpose of getting my spouse a green card?

It is too late to get married for the purpose of getting your spouse a green card when your I-485 is approved. Your spouse can submit an I-485 or take the Consular Processing to get a green card as a derivative beneficiary of your petition before your I-485 is approved. However, after your I-485 is approved, your spouse has to go through a family based immigration and it takes about five years.

25. What are the benefits to retain an attorney in I-485 applications?

The benefits include but are not limited to the following:
a. You can get professional consultations and suggestions from the attorney regarding some complicated issues related to your case.
b. If you change your address in the future, USCIS will send all the documents and inquiries to your attorney. Then, you will always be updated about the status of your case.
c. Immigration officers sometimes make inquiries (sometimes phone inquiries which we received from time to time) when they process a case, your attorney can provide prompt and effective communication with them.
d. An experienced attorney can help you prepare the forms and supporting documents faster and more accurate. However, this is not as important as the above benefits, as the forms are not very complicated.

26. I am in J-1 status and subject to the two years, may I apply I-485?

You may apply I-485 only after the two-year residency requirement is met or waived.

27. I move around a lot and I am afraid that the USCIS will send something to me at an address where I am no longer living. What can I do?
You should inform the USCIS of your new address. If you have retained an attorney to handle your case, your attorney will be notified with the information the USCIS sends to you. This is another reason why people retain attorneys to handle their cases.

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The fifty-five professionals at Zhang & Associates, P.C. are committed to providing high quality work and professional services to our clients.

We provide free evaluations and take new cases. Please send your vita and questions to Attorney Jerry Zhang via @hooyou.com">info@hooyou.com for a free evaluation.

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Tel：1-800-230-7040, 713-771-8433
Email: @hooyou.com">info@hooyou.com
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