IS THIS REALLY GOOD NEWS?
INS Passes a Rule Allowing Concurrent
Filings.
ON JULY 31, 2002, the INS passed an interim rule
allowing two parts of the employment-based green card application
process to be filed concurrently. As many UJ readers are already
aware, employment-based permanent residence is a lengthy process,
taking several years to complete. Often it begins with the employer
filing an application with the US Department of Labor seeking to
certify there is a shortage of qualified and available US workers.
After this certification is received, the employer must file an
immigrant visa petition with the INS. After the petition is approved
(and an immigrant visa number is available which there usually is for
applicants born in the UK), the foreign national may file an
application for permanent residence.
With concurrent filling, the immigrant petition and
the permanent residence application may be filed together as long as
there is an immigrant visa available. The INS has stated that
concurrent filing will result in faster, consolidated processing. This
remains to be seen. Other benefits from the concurrent filings include
the following: 1) A foreign national who is running out of time in
nonimmigrant status will be able to maintain lawful status; 2)
Dependents of the foreign national may also file their applications
for permanent residence as well as work permits and travel documents
at a much earlier date; 3) Applicants will be protected in the event
that immigrant visas become unavailable (in other words, if priority
dates retrogress) because they will still have an employment
authorization document ("EAD") allowing employment and, if
otherwise allowed, travel documents ("advance parole").
On the other hand, concurrent filing brings
potential problems and pitfalls. One such pitfall results if the
underlying immigrant petition is denied. The result is that the
application for permanent residence will also be denied. The applicant
and any dependent family members will then lose INS and legal fees
spent on their permanent residence applications. The applicant and his
family will also lose their EADs and advance parole documents.
Even more serious is the fact that a foreign
national who files an application for permanent residence under
Section 245(i) of the Immigration and Nationality Act can only file
this type of application once. In other words, they are only allowed
"one bite of the apple". If we combine this issue with the
previous scenario where the application for permanent residence fails
only because the immigrant petition, which underlies the application
fails, then this foreign national will not be able to file another
application for permanent residence if indeed he or she needed
benefits accorded under section 245(i) (which was described in
previous articles).
Whether to go ahead with concurrent filing is a
strategy that must be developed between an employer, employee and
their immigration attorney. It may be right for some but not for
others.
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Mitchell Wexler is a senior
partner in the national immigration law firm of HirsonWexlerPerl. He
is a Past Chair of the Southern California Chapter of the American
Immigration Lawyers Association (AILA), the Chapter’s Department
of Labor Liaison, and former Vice-Chair of the California State Bar’s
Advisory Commission on Immigration & Nationality Law.
He welcomes all queries to mwexler@hirson.com
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