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Considerations when seeking an employment-based adjustment of status

On Behalf of | Aug 26, 2021 | Employment Visas

EB backlogs have long wait times for applicants around the world. Applicants from India and China, in particular, may have been caught in a decades-long wait. While you’re waiting for your priority date to become current, it is important that you maintain nonimmigrant status. You may be considering an employment-based adjustment of status.

Options

The American Competitiveness in the 21st Century Act (AC21) makes H-1B extensions available beyond six years. The L-1A offers a seven-year limit, while the L-1B offers a five-year limit. The O-1 can be renewed indefinitely. In order to pursue these adjustment of status options, applicants will have to file an I-485 application. Here are some key considerations to keep in mind in this process:

Priority date

The priority date is established when a labor certification or petition is first filed. Title 8 of the Code of Federal Regulations allows for the retention of priority dates between EB-1, EB-2 and EB-3 petitions. If you are subject to multiple approved positions in EB-1, EB-2 and EB-3, you are entitled to the earliest priority date. There are also certain instances where your priority date could be lost – for instance, if there’s any form of fraud or misrepresentation in the petition, or if the Department of Labor revokes the labor certification.

Upgrading and downgrading

Some applicants may choose to upgrade their petition (e.g., from EB-2 to EB-1) or downgrade their petition (e.g., from EB-2- to EB-3). It is worth understanding that you can file for an upgrade or downgrade I-140 with a concurrent I-485, even if the original labor certification was filed with an I-140 for previous visa type. In such cases, the United States Citizenship and Immigration Services (USCIS) will approve your I-485 based on whichever Final Action Date becomes current under the “Transfer of Underlying Basis.”

Employment immigration is one of the most complex areas of U.S. immigration law. Attempting to navigate the process alone will likely lead to missteps – and denial of your petition. Working with an experienced business immigration attorney can be an invaluable asset.

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