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Listserv Q&A for
"Adjustment Of Status In Immigration Practice Today"

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Question:

I would like to amend one answer given during the Q&A portion of the 3/23 telecon on adjustment of status. This concerns the situation of a derivative H-4 child of a principal alien H-1B worker who is the beneficiary of an approved Labor Certification (ETA-750 or ETA-9089 under PERM, either kind), but who is in a category and from a country where the family faces a potential wait of several years before being able to file I-485 applications for permanent residence. For example, this could be an EB-3 Canadian-born worker and derivatives, or an EB-2 Chinese-born worker and derivatives. Assume for the moment that the Visa Bulletin cut-off dates are not expected to be moved up significantly or be eliminated by Congress increasing the quota of employment-based visa numbers in the foreseeable future (a possibility at the present time). In such cases, H-4 children might well age-out and be unable to derive LPR status through the parents even if CSPA sec. 3 (INA sec. 203(h)) is applied to them. By the time a visa number becomes available in the world-wide EB-3 category or Indian/Chinese EB-1/EB-2/EB-3 categories, the derivative children could be 23, 24 or even 25 years old, so old that subtracting off the days the I-140 is pending is not going to do much at all to reduce their to back under 21.

Answer by Dinesh Shenoy:

In answer to a question from a caller about this general scenario, I mistakenly said that by delaying filing of the I-140, the employer might be able to help stave off the possibility of age-out (by attempting to delay the moment in time when the immigrant visa number becomes available to the family, by delaying the moment of I-140 approval). However, that is incorrect; approval of the I-140 no longer is the moment an immigrant visa number becomes available (as it had been from July 2001 to December 2004 in all EB preference categories). In any preference category that does not have "currently" available immigrant visa numbers, the moment when the Visa Bulletin cut-off for that principal worker's category will reach his/her priority date is an unknown future date that cannot be predicted with any accuracy. Therefore, delaying the filing of the I-140 would be of limited value in the CSPA calculation.

After the telecon I remembered that the reason I might advise an employer to delay I-140 filing was not because I could thereby help prevent age-out. Instead, delaying I-140 filing would be for the separate reason of delaying the moment in time when the H-4 derivative exhibits immigrant intent. If an H-4 derivative of an EB-3 Indian worker is now 20 years old and the family is unable to file I-485s before the H-4 child turns 21 years of age and falls out of status, then the H-4's best strategy might be to either change status to F-1 student status and/or exit the United States and obtain an F-1 visa abroad and return to the United States on the F-1 visa. In either circumstance (filing of an I-539 and/or a DS-156), the only way the derivative can honestly answer "no" to the questions concerning whether an immigrant petition has been filed for him/her is if the I-140 has not been filed yet. I believe the derivative would have better chances of being granted a change of status to F-1 and/or being granted an F-1 visa stamp overseas if the I-140 is not filed (since when filed the I-140 must list the child as a derivative on page 2 of the I-140 form).

So the strategy of not filing the I-140 would be geared towards the planning for the derivative in the event that the visa number backlog does not clear up before the child ages out (not towards trying to actually prevent age-out, which we are powerless to do through timing of I-140 filing). It goes without saying that any plan to delay filing of the I-140 must have the employer and employee's full consent. That is becasue while there is this up-side to not filing the I-140 (better chances of future F-1 status/visa for the aged-out derivative), the downside of not filing the I-140 right away is that the priority date (date of Labor Certification) is not truly locked in for 8 CFR 204.5(e) priority date retention purposes unless and until the I-140 is APPROVED. If the employment relationship is severed at a future time when the Labor Cert is approved but the I-140 was being deliberately withheld from filing by the employer because of strategizing for a derivative's future change to F-1 status (and the employer never has any intention of ever hiring the worker back again in the future and thus cannot file an I-140 anymore for that worker), the principal worker alien would discover in a new job with a new employer starting over on a new Labor Certification that the previous Labor Certification's filing date is not a retained priority date for the new employer's future I-140. Therefore, the pros and cons of deciding to delay I-140 filing after Labor Certification approval must be weighed and the decision must be made by the employer, which may want to factor in the alien employee's wishes on whether or not to file the I-140 right away.

This strategy of delaying I-140 filing is possible under the present regulations at 20 CFR 656.30(a) which state that approved Labor Certifications are valid indefinitely. If the proposed DOL rule requiring filing of I-140s within 45 days after Labor Certification approval (see 71 Fed. Reg. 7656, 7663 (Feb. 13, 2006)), is adopted as a final rule or interim final rule then of course this strategy is no longer possible.


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