Employment-Based Priority Dates Current, Still Possible?
Much excitement and anticipation was raised on November 21, 2014 when President Obama issued an executive order to make changes to the U.S. immigration system. Soon thereafter, the President issued a Presidential Memorandum directing the Secretaries of State and Homeland Security to develop recommendations on streamlining and reforming the United States’ legal immigration system. Many were hopeful that one such effort at reform might allow those Employment-Based green card applicants with backlogged priority dates an opportunity to file an I-485 application based on an approved I-140 petition.
Public Comments Requested
While most of the media buzz surrounded the President’s plans to expand the Deferred Action program for certain undocumented individuals, the Department of Homeland Security and the State Department quietly issued a Notice of Request for Information seeking public comments on ways that the current employment-based immigration system could be improved within the current statutory framework. Little has been discussed on this topic since the written comment period closed on January 29, 2015.
Injunction Not Applicable
Many individuals who could potentially benefit from improvements to the current system assume that no further action will be taken due to the injunctions blocking President Obama’s executive action. However, the recent announcement that the long-awaiting H-4 EAD proposal will finally be implemented is a positive sign that other parts of the president’s plan can continue in spite of the injunction. Contrary to the Deferred Action program changes, the Employment-Based immigration reform plans have been going through the normal administrative process for agency action. Therefore, the Employment-Based proposals are not at issue in the injunction, which seeks to halt changes that were not implemented through normal agency procedures.
Possible Action before the End of the Year
Based on this distinction, the Department of Homeland Security continues to have a strong interest in improving the current immigration system by more fairly allocating Employment-Based visa numbers. This likely reflects the potential of allowing those with approved I-140s to file an I-485 application even without a current priority date. If public comments to the earlier Request for Information are positive in regards to this issue, it is likely that the agency recommendations will incorporate a solution to the backlog by allowing certain individuals to file the I-485 application in advance of the priority date being current. Other likely recommendations would allow recapture of previously unused green cards or changing the way dependents are counted.
The timeline for an actual proposed regulation and final rule could vary. Generally, the proposed rule may extend another comment period, which typically ranges from 30 to 60 days, before a final rule is submitted. However, in certain situations, the comment requirement may be waived. Based upon timelines of past regulations, we anticipate that this proposed rule could be published possibly in the next 4 to 9 months.
Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.