EB 485 processing: Green Card Approved!
Some important notes for people who just got approved for their green card, including comments on 'how long you have to stay' at the sponsoring employer
This post discusses EB (Employment-Based) I-485 application processing and the fact that right now (August 2022), USCIS is approving A LOT of pending EB I-485 applications.
The approvals should continue at a good pace through September 30, 2022, which is the last day of the U.S. government’s fiscal year 2022.
It is not clear whether the accelerated pace for EB I-485 adjudications will continue into FY2023 (which starts October 1, 2022).
[USCIS struggles with sustained excellence.]
It is also not clear whether certain visa bulletin categories, like India EB2 and India EB3, will stay at the same visa bulletin cut-off dates at the start of FY2023.
It is possible that EB-2 and EB-3 India dates will be subject to ‘retrogression’ - that is, they will fall back based on the per-country quotas which traditionally make green card processing so slow for people born in India.
Hopefully retrogression will not occur but it is something to watch.
###
This post will also share some important details for people whose I-485 applications were just approved, including how long they should stay at their sponsoring employer.
Please consider sharing this post to anyone who might be fortunate enough to have been approved for a green card recently.
Why Now?
A quick ‘history’ of EB I-485 processing and the visa bulletin -
During the Trump years (January 2017 to January 2020), USCIS processed EB I-485 applications slowly. The Trump Administration introduced a variety of policy changes which basically bogged down the system, including mandatory interviews for EB I-485 applicants. This was consistent with the Trump Administration’s view that immigration was zero-sum and that every immigrant was taking an opportunity for a U.S. citizen.
By the end of the Trump Administration, it was not just the policy changes that caused delays but also COVID. The COVID pandemic caused USCIS to essentially shut down at the same time that COVID also created a surge in various kinds of filings, including EB I-485 filings.
You see, each fiscal year, US law states that the US government is permitted to approve a limited number of green cards. There is a cap (annual limit) to FB (family-based) green cards as well as EB (employment-based) green cards.
What happened in FY2020 is that the U.S. consulates were closed due to COVID and did not get anywhere near the annual limit for FB green cards. [Note that FB green cards are principally approved at U.S. consulates abroad as family-based immigrants are often in their home country not eligible for temporary visas to wait in the US; whereas the vast majority of EB green cards are approved through “I-485 adjustment of status” in the US].
Because the U.S. consulates were closed in FY2020 due to COVID, and not many FB green cards were issued by U.S. consulates, the law states that the unused FB green cards “spillover” into the next fiscal year for EB (not FB) green cards. This is what created the historic movement in cut-off dates on the visa bulletin in October 2020. One of the all-time great ironies is that after the visa bulletin barely budged for the entire two terms of the Obama years, many thousands of Indian-born green card applicants were able to file I-485 applications DURING the Trump Administration, an Administration which was well-known to be hostile towards Indian EB immigrants. This was not because of something the Trump Administration wanted but rather because COVID closed the U.S. consulates blocking FB immigrant visa processing and spilling over to EB visa numbers.
October 2020 was the start of FY2021 and so the unused FB green cards from FY2020 “spilled over” into EB FY2021, which started in October 2020. A huge number of EB I-485 applications were filed in October 2020 and also November 2020 but clearly USCIS was not ready for that volume of filings and things bogged down. The quagmire continued for all of FY2021 and USCIS left around 60,000 EB immigrant visas unused as a result of being unable to manage the surge of filings. This failure to use all the EB visa numbers brought considerable (deserved) criticism, particularly from Senators in the Democratic Party.
Things at USCIS continue to be bogged down to this day (almost 2 years later), but USCIS has made a clear commitment publicly and repeatedly to adjudicate as many EB I-485 applications as permissible by the end of this fiscal year - which ends September 30, 2022.
USCIS has really accelerated processing and now every week a lot of EB I-485 applications are approved. (YAY!)
Note that every year a disproportionate number of EB I-485 applications are approved in the last quarter of the fiscal year, namely July/August/September. And the same thing is happening this year.
As a result of the spillover from FY2021 to FY2022 (this year), we are seeing record number of EB I-485 applications approved, particularly for EB2 Indians.
However, this is not to say that every single pending EB I-485 application will be approved by September, and frankly in some ways it is MORE stressful for some people to watch their colleagues and friends get approved all around them while their application remains pending.
There definitely is NO LOGIC associated to why some cases are approved and some remain pending.
It is very clear that USCIS is NOT using a “first-in, first-out” system. In fact, nearly all EB I-485 applications filed this spring are being reviewed and approved faster than applications filed in fall 2020 or spring 2021.
Keep in mind that if the I-140 petition that served as the basis of your I-485 is not approved, then your I-485 application won’t be approved.
There is some complexity to this issue for people born in India who filed ‘downgrade’ I-140s in fall 2020 to downgrade from EB-2 to EB-3, and later they sought to upgrade to EB-2 based on EB-2 cut-off dates moving up quickly. Some of those downgrade I-140s are still pending, and in my view that is a real problem although some lawyers disagree.
If you have an I-140 pending, I strongly recommend converting the I-140 from regular to premium processing.
Important Considerations about your New Status
Now, for those of you who were approved for green cards, some thoughts -
Your green card should be valid for 10 years and will need to be renewed within 6 months of the expiration date, if you are not a U.S. citizen by that time. No one will remind you of the green card expiration so you need to remind yourself.
If you have a child who got a green card and the child is under 14, the green card might appear valid for 10 years but it is very likely the green card actually expires at age 14. This is based on an absurd system that USCIS uses but it is best to simply assume your kid’s green card expires at age 14 and plan to file an I-90 at that time. [The absurdity relates to criminal background checks].
The green card renewal process, at least right now, is very straightforward. You file Form I-90 and you definitely do NOT need an attorney. The filing fee is a rip off but what can you do…
Even though you are a green card holder, U.S. immigration law states that until you become a U.S. citizen, you MUST update USCIS of any address changes. This requires filing Form AR-11, which can be found at www.uscis.gov.
If you want to leave the United States extended periods of time, you can potentially lose your green card. The rules are surprisingly complex (heh, maybe not surprisingly since everything seems complex!) — but my recommendation is that if you plan to leave the United States for more than 3 consecutive months (90 days), you should consult an attorney. This is not to say that the limit is 91 days but rather than you should at least consult a qualified attorney if you are going to spend 90 days outside the United States. You worked hard to get your green card. Don’t lose it without careful consideration.
Research how to get a new SSN Card by reviewing the information at www.ssa.gov. You will keep the same SSN number but you will get an “unrestricted” card. You want this for various reasons. I strongly recommend doing this right away.
If you have not already, you should present your green card (I-551 permanent resident card) to Human Resources at your employer as evidence of your work authorization. Human Resources will also use this card to update your I-9 work authorization form. You have indefinite work authorization now.
If your driver’s license has any restriction or ‘status check’ based on your visa status, you can take your green card to the DMV and get an unrestricted driver’s license. I strongly recommend doing this right away.
If you want to pursue U.S. citizenship (naturalization), you are potentially eligible to file after having green card status for a period of 4 years and 9 months, provided you are physically present in the United States at least 50% of the time and you don’t spend long periods of time out of the United States. Note that you are not given credit for prior time in the United States on a temporary visa. You need to qualify based on green card status time.
If you plan to apply for naturalization (US citizenship), you should track your periods in and out of the United States now and keep all email air itineraries because you will be required to document all international travel at the time of the naturalization application. It is easier to track it as you go than try to remember 5 years back.
I am not a tax expert, but my general understanding is that green card holders must always file U.S. tax returns and disclose worldwide income. You have probably already been participating in this tax compliance but if in doubt, contact a qualified tax professional for details.
Regarding Job Changes after I-485 Approval
If you are Indian-born, you might have been waiting 10+ years to get your green card. This is because of the cut-off dates on the visa bulletin that kept you from filing your I-485 and getting it approved.
For Indian-born EB immigrants, the green card process might have greatly limited your career and professional development. For that, as a U.S. citizen, please accept my sincere apologies. Our system is really pathetic in some ways and I wish we would never have created a system that somehow created a disincentive for people to pursue their best life.
There is an idea out there that after you obtain your green card, then you need to stay at the sponsoring employer for at least 6 months. I strongly disagree with this sentiment.
The 6 month rule IS RELEVANT if you have never worked at the sponsoring employer, or perhaps just recently joined the sponsoring employer; but for EB I-485 applicants, particularly those born in India, they have often worked for the sponsoring employer for MANY YEARS.
While it is true that any person should be able to definitely stay at the sponsoring employer for as long as they want, there should be NO ISSUE to leave the sponsoring employer after being approved for a green card.
The “6 month rule” is not an official rule but comes out of the idea that if a person leaves the green card sponsoring employer too soon, then it might be considered misrepresentation.
If you were sponsored for a job from abroad and then you arrived in the US and within a week you quit the sponsoring employer and went to another one - later, at the time of U.S. citizenship (naturalization), the USCIS might review your work history and consider your sponsorship a misrepresentation, but I am confident that would NOT happen if you have already worked at the sponsoring employer for several years (or even a few years).
In fact, U.S. immigration law allows I-485 applicants to change employers after their I-485 application has been pending 181 days so it would be absolutely ridiculous if you could change employers while your I-485 is pending but somehow you are required to work at the employer after your I-485 is approved.
I am not encouraging people to leave their employers, but I know that so many Indians in particular have waited a long time and now that they have their green cards, they should be able to pursue other opportunities.
Congrats on completing the long journey to a green card! Even if you were not born in India, you probably waited a lot longer than expected. I hope this post was useful to you.
Additional information about your green card status can be found here: http://www.uscis.gov/green-card/after-green-card-granted.
Thanks for reading my newsletter.
