Over the last several months, USCIS has taken serious steps to approve as many Green Cards as possible before the end of the fiscal year. To their credit it appears that they will keep their word and fulfill their stated aim– approve the maximum allowable allotment of Green Cards in fiscal year 2022. However, in their eagerness to finalize the Green Card process for thousands of individuals, it appears USCIS may be approving Green Cards in the wrong employment-based (EB) category.
Generally, these “issues” arise on I-485s originally filed under EB-3 category. The issues then arise in two independent scenarios: 1) Approved in EB-3 after interfiling to EB-2, and 2) Approved in EB-2 with no interfiling request.
For Green Cards approved in EB-3 after interfiling to EB-2, clients are concerned that the Green Card was approved in the wrong category. Through liaison with the USCIS Ombudsman, it was learned that the cases were not approved in the wrong category. Instead, what has occurred is the approval under EB-3 was previously allotted months back when the EB-3 priority date was current, with USCIS issuing the approval under the rationale that the petition was “approvable at that time” but the actual approval could not be provided due to lack of processing capacity. If you are finding yourself in this scenario, there should be no cause for alarm—simply put it just took USCIS forever to issue the EB-3 approval and it was “approved” long before the interfiling request.
For Green Cards filed in EB-3 but approved in EB-2 with no interfiling request, clients are similarly concerned that the Green Card was approved in the wrong category. This issue emerges in two scenarios: 1) the individual has EB-2 and EB-3 approvals from Company A (I-140s from same company), and 2) the individual has EB-2 from Company A and EB-3 from Company B (I-140s from different companies).
For an individual in Scenario 1 (I-140s from same company), USCIS essentially did an interfiling request for you. They see you have an EB-3 Green Card pending but a current priority date through an I-140 from the same company. Rather than let that EB-3 case languish but for the I-485J interfiling request, USCIS took it upon itself to approve the case under a rationale that the enabling authority for interfiling requests allows USCIS to directly approve in the “other” category on their own. If you are finding yourself in this scenario, there should be no cause for alarm—simply put it USCIS “filed” your interfiling request without telling you!
For an individual in Scenario 2 (I-140s from different companies), USCIS has indicated that they have the authority to use the I-140 approval from a different company and category to issue a Green Card approval. While it is not exactly clear from where that authority arises, it doesn’t make much sense to challenge USCIS on that fact—after all, we have the long sought after Green Card approval. As they say, “don’t ask how the sausage is made, just enjoy the meal”.
By Ryan A. Wilck, Partner and Attorney at Law
Ryan Wilck is an attorney at Reddy & Neumann P.C. assisting helping clients and their employees through the phases of the Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients utilizing a relentless and detail-oriented work ethic to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem, he and his team will find a solution, through wisdom and effort.