Page 38 - The Indian EYE 070122

IMMIGRATION JULY 01, 2022 | The Indian Eye 38

Still Disadvantaged Even When Your

Priority Date Becomes Current

CYRUS D. MEHTA AND come about when one I-140 is under the first, second, or third rent, but it has now retrogressed. To err on the side of caution, in-
KAILYN BOX* current but the other is not. preference category in order to If this individual’s priority date dividuals who are the beneficia-
Individuals who are caught Pursuant to § 104(c) of the obtain H-1B extensions beyond has become current under EB- ries of one I-140 petition that is
in the employment-based im- American Competitiveness in the sixth year, but provide little 2, he would likely want to con- current and another that is not
further guidance, especially con-
the 21st Century Act (AC21), an
may consider requesting a three-
sider filing a transfer of underly-
migrant visa backlogs must individual who is the beneficiary cerning individuals who may the ing basis request to connect his year extension of H-1B status,
navigate myriad issues that are of an I-140 petition and would beneficiaries of more than one adjustment of status application but disclosing the existence of
associated with waiting for their be eligible for adjustment of sta- I-140 petition. to the EB-2 I-140 instead, hope- the second I-140 and asking in
priority dates to become current tus “but for application of the One conundrum arises fully ensuring more expeditious the alternative that USCIS grant
and applying for adjustment of per country limitations applica- when an individual is the bene- approval. Complications arise, a one-year extension, provided
status. Generally, it is cause for ble to immigrants”, is eligible for ficiary of two approved I-140s, however, when an applicant in that either the labor certifica-
celebration when these indi- extensions of his nonimmigrant one under EB-2 and the other this situation has not yet filed a tion or the I-140 petition was
viduals’ priority dates become status in three-year increments under EB-3, but she has filed transfer of underlying basis re- filed more than one year before
current, as then are eligible to until the adjustment of status her adjustment of status appli- quest but also wants to seek an the individual’s sixth or final
apply for adjustment of status. application has been processed. cation in connection with only H-1B extension beyond the sixth year in H-1B status. Adopting
When the Final Action Date Similarly, 8 CFR § 214.2(h)(13) one of I-140s and the other year based on the EB-3 I-140, this approach could prevent an
becomes current, the individual (iii)(E) provides that “an alien remains unutilized. In recent which is no longer current. Giv- outright denial of the petition
should receive permanent resi- who currently maintains or pre- months, EB-2 dates have raced en the ambiguity regarding US- if USCIS declines to approve a
dence. But a Final Action Date viously held H-1B status, who is ahead while EB-3 dates have CIS stating that the 180 day por- three-year extension.
becoming current can also bring the beneficiary of an approved retrogressed, so many individ- tability clock starts again upon In addition to requiring fre-
about a number of additional immigrant visa petition…and uals’ priority dates may have an interfiling request, some quent renewal, one-year H-1B
issues that must be considered who is eligible to be granted become current under the sec- have chosen not to interfile extensions are subject to oth-
carefully. In our previous blog, that immigrant status but for ond preference category, but and remain in EB-3 especially er pitfalls as well. If H-1B visa
we discussed the problems that application of the per country are not current under the third. when they have changed to new holders are confined to one-year
can arise when workers do not limitation, is eligible for H-1B If an adjustment applicant has employers. As in the above-de- extensions of their statuses, H-4
apply for adjustment of status status beyond the 6-year limita- already filed her I-485 in con- scribed scenario, the regulations spouses seeking initial EADs are
within one year of their priority tion…”. 8 CFR §214.2(h)(13) nection with her approved EB-2 may not preclude an individual disadvantaged. Many are in this
date becoming current. For indi- (iii)(E) plainly requires that an I-140, may she still seek a three- in this situation from seeking a situation as the USCIS has been
viduals who are the beneficiaries individual must be the beneficia- year extension of her H-1B sta- three-year H-1B petition. so slow in approving adjustment
of more than one I-140 petition, ry of an approved I-140 petition tus based on her EB-3 I-140, Individuals who find them- applications even when the Fi-
another set of questions can which is not current? The selves in this situation may find nal Action Dates have been cur-
language of AC21 § 104(c), some refuge in AC21 § 106, rent for several months. Based
and 8 CFR §214.2(h)(13) which states that an H-1B non- on current USCIS processing
(iii)(E) do not seem to immigrant may receive exten- times, an initial application for
prohibit an application for sions of status in one-year incre- an H-4 EAD can take up to 8.5
an extension in this scenar- ments if more than one year has months to be issued. Because
io. The regulations do not passed since either the labor cer- the expiration date of the EAD
specify that the individual tification or the I-140 has been will be tied to the validity of the
seeking an H-1B exten- filed. Even if the labor certifica- H-1B petition itself, an EAD
sion must not have another tion and/or I-140 petition have based on a one-year H-1B ex-
I-140 petition that is cur- been approved, the individual tension might only be valid for
rent, or must be seeking can continue obtaining one-year a couple of months by the time
adjustment of status pur- extensions until an adjustment it is issued. Similarly, it can take
suant to the same I-140 pe- of status application can be filed. several months for EADs and
tition being utilized for the An individual whose priority advance parole based on a pend-
H-1B extension. date is current cannot ensure ing adjustment application to be
Another difficult situ- continued H-1B extensions by issued, potentially leaving H-4
ation arises when an indi- delaying filing an adjustment of spouses without work authori-
vidual is similarly the ben- status application, though. Proof zation if the H-4 EAD is issued
eficiary of two approved must also be provided that the with a very limited validity.
I-140s, one under EB-2 and worker applied for adjustment (This blog is for informational purpos-
one under EB-3, but filed of status within one year of his es and should not be viewed as a sub-
his adjustment of status priority date becoming current, stitute for legal advice).
application in conjunction and if not, demonstrate that the *Kaitlyn Box graduated with a JD from
with the EB-3 I-140 when failure to apply was due to cir- Penn State Law in 2020, and is an Associate
his priority date was cur- cumstances beyond her control. at Cyrus D. Mehta & Partners PLLC.
m of ___________________________________________________________________________________________________
CYRUS D. MEHTA & PARTNERS PLLC Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D.
Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s
EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental

Disciplinary Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigra-
tion; board member of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta

  is the former chair of the Board of Trustees of the American Immigration Council and former chair of the Committee on
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­ Immigration and Nationality Law of the New York City Bar Association. He is a frequent speaker and writer on various
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immigration-related issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he
teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award
for advancing the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding
efforts in providing pro bono representation in the immigration field. He has also received two AILA Presidential Com-
mendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s
2 6th Floor Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in

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immigration law, among other rankings.

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