Obama's Executive Action and the I-485 - When Can I File?

On November 20, 2014, President Obama issued an executive action outlining immigration reform initiatives that were to be detailed and implemented in the coming months. While much attention has been given to the provisions for undocumented foreign nationals (DACA and DAPA), not as much has been said about the proposed initiatives for streamlining the employment-based permanent residence process. One aspect of President Obama's announcement addressed the long wait from the time a person starts the PERM process to the time he or she can submit the I-485.

Basics: Green Card Through Employment

In general, obtaining a green card through employment requires three major stages:

  • The employer must obtain a PERM labor certification;
  • The employer must then file an I-140, the Immigrant Petition for Alien Worker.
  • Typically once the priority date comes current, the employee and the employee’s family members may file I-485 paperwork.

I-485: What Is This and When Can I File?

The I-485 form is the last step of the green card process, and successful filing results in an adjustment of status—or permanent resident status (a green card). An I-485 may be filed once the priority date becomes current. The priority date becoming current and filing an I-485 means the applicant can receive a travel document and work permit (advance parole and EAD), and in some instances it allows the employee to change employers without having to start the green card process over again.

However, there is a limit on the number of green cards available each year. This means many, many people are waiting for their priority date to become current. And for certain countries with many applicants such as China and India, the wait can be very long. At this point, there is such a backlog of people waiting for their priority dates that eligibility to file an I-485 could take 5-8 years or longer.

Obama's 2014 Immigration Proposal: How It Could Affect the Green Card Process

Obama’s proposal is designed to allow those foreign nationals who have started to green card process to obtain the benefits of a pending I-485, such as work permits and travel documents. This is exciting news to many foreign nationals who have waited years to submit the I-485. While we remain optimistic about this aspect of the proposal, we do not yet know exactly what this will look like or when it will become effective. The information we have refers to a pre-registration process. While many assume that this would effectively be filing the I-485 before the priority date is current, we do not know that for sure. Further, this provision has not become effective yet. This will require a change in the regulations, which USCIS would do (not Congress). However, at this time, no estimated time frame is available. Further, as you may know, a federal court has ordered a temporary injunction stopping the implementation of DACA and DAPA (the part of the proposal affecting those in the US without immigration status). At this time it is not expected that this lawsuit will affect the employment-based provisions of the Executive Action.

More details will continue to be developed, and we will provide updates as they become available. Do you have questions on how to handle your I-485 or on other employment-based or family-based immigration matters? Please contact our Richmond immigration law firm at 804-396-3412 or info@sumnerimmigration.com for more information!

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