The green card and priority dates: An interesting point

[echarcha]

Yesterday I was at a friend's place and met some other friends of his. We were discussing about the current greenc ard scenario and the priority dates moving ahead so fast for India.

For those of you who are new to this, the priority date is when you file you file your Labor certification for the green card process. This is the first step you take for applying for the green card. Then there is the INS I-140 (second) stage. Finally when you get clearance of the I-140, you have to wait till your dates go current. Means that if you filed for Labour, say, in July 1998, then you have to wait till INS says when your priority dates are current.

So when it goes current, you can file for the last stage called I-485.

Earlier this used to take a lot of time, but after passing a new law S.2045 by the US government, these 'priority' dates are moving quite fast. In the most general employment category called as EB3, the dates for India are moving at 5 months per month.

This is a welcome sign as many folks in long waiting lines can get their greenc ards faster.

Well, one of the friends in yesterday's discussion said that, though INS is moving these dates fast, they dont expect a flurry of back-logged applications for I-485. The reasoning he gave was that the current economic recession has caused many lay-offs. Many employees awaiting the priority date to go current at the to apply for I-485 have now been laid off! So their applications for green cards are no longer valid.

This means that those who still have jobs, will be able to get their cards even faster.

Wel, I thought that this reasoning was quite interesting and so I posted it here for your comments and views.

... no logic or reasoning works when it comes to INS. They have their own rules and formula to move the priority dates - even when they make them current.

But, everyone in the boat (me included at one time) has his own reasoning for INS acting a certain way. I think any desi who has gone through the rigor of Greencard can become a good immigration attorney - should he/she lose his day time job.

[JACK2008]

©MurthyDotCom
We at The Law Office of Sheela Murthy have received several questions about how retrogression impacts the benefits provided by the Child Status Protection Act (CSPA) in employment-based green card cases. Unmarried children are eligible for dependent benefits, including green cards, until they turn 21 years old. However, the CSPA locks in an age for dependent children. That is, the child is treated as being under age 21 for purposes of immigration benefits in certain circumstances, even though s/he is chronologically over 21 years. If the locked age is less than 21 for an unmarried child, that child is still permitted to obtain the green card as a dependent. With retrogression, however, the final calculation will likely give fewer children the benefit under the CSPA.
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Priority Date Never Current before Labor Certification Approved
©MurthyDotCom
Many persons are still in the labor certification stage of the employment-based green card process. When a labor certification is approved, such an individual can file the I-140 petition. Under current law, s/he cannot file the I-485 application unless or until the priority date is current. In this scenario, the child's age will not be locked until the priority date is current. Under the CSPA formula, a child's chronological age at the time the priority date becomes current is reduced by the time the I-140 petition was pending with the U.S. Citizenship and Immigration Services (USCIS). To calculate the time that the I-140 petition was pending, the government subtracts the date the USCIS approved the I-140 petition from the date the petitioner filed the I-140 petition with the USCIS. No other time is counted.
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For example, if a child is 21 and two months old on November 1, 2005, when the priority date becomes current for his parent's employment-based case, the USCIS will use the following equation: 21 years, two months – (I-140 approval date – I-140 filing date) = Child's CSPA age

If the I-140 petition was filed on January 1, 2005 and approved on July 1, 2005, then the equation is completed as follows:
21 years, two months – (July 1, 2005 – January 1, 2005) = Child's CSPA Age
- OR -
21 years, two months – (6 months) = Child's CSPA Age
Therefore, in this example, the Child's CSPA age is 20 years, 8 months, and the child is eligible for a green card as long as the child seeks to acquire the green card by filing an I-485 application in the U.S., a DS-230 Part 1 for consular processing, or the child's parent files an I-824 application for consular notification within one year of the priority date becoming current.
©MurthyDotCom
Note that, if the USCIS processes the I-140 petition more quickly in this example (i.e., approves the I-140 petition on February 1, 2005), the child's CSPA age would still be over age 21, and the child would likely not qualify for the benefits of CSPA. Thus, with faster I-140 processing and long waiting times due to retrogression, the CSPA will not always protect these children.
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Priority Date Current - Then Retrogresses
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While the example above presents a straightforward answer to whether or not a child can benefit from the CSPA, a more troubling situation may occur if the parent had a labor certification approved at a time when the priority dates were current and then the dates retrogressed. The manner in which the days would be counted is unclear, and there are a number of possible scenarios.
©MurthyDotCom
If the parent filed the I-140 and I-485 concurrently when the priority dates were current, and, thereafter, cutoff dates / unavailability occurred, it is not entirely clear that the calculation of whether the child has sought to acquire status is counted from the time the priority date becomes current again. That is, it is not clear whether the one year is calculated from the date the labor certification was approved and the person was initially eligible to file the I-140 petition and I-485 application concurrently. Alternatively, the one year may begin at the time the labor certification was approved and the I-485 could be concurrently filed with the I-140 petition, but then stops when the numbers retrogress and resumes when the priority date becomes current again. It is also not clear if the calculation of when the priority dates become current is measured from the first point when the I-140 and I-485 could be filed or from the point when the I-140 is approved. The USCIS and the U.S. Department of State (DOS) will need to provide further guidance on this issue. We at The Law Office of Sheela Murthy hope that they will construe this matter liberally, in order to safeguard family unity and the underlying purpose in the enactment of the CSPA.
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