1. Filing an I-485 may be viable as long as you have maintained legal nonimmigrant status
A reader asks:
I filed for I-140 two months ago without premium, and it’s still pending. Unfortunately, I was just laid off. Company policy says they won’t withdraw the I-140, but if there’s an RFE, the company won’t respond. If everything goes well, it may still be approved. Now, that PERMs are often getting denied, I’m wondering: If I return to the same company a year later, and my I-140 is still pending and PD is current, can I expedite the I-140 and file I-485?
Alan Lee, Esq. answers,
The scenario that you suggest of returning to the same company a year later when the I-140 is still pending, the priority date is current, and at that point expediting the I-140 and filing an I-485 adjustment of status application may be viable as long as you have maintained legal nonimmigrant status and the company is willing to continue sponsoring you for permanent residence because it has a permanent full-time position for you consistent with the terms of the labor certification.
2. USCIS processing time for AP, 80% of cases exceeds a year
A reader asks:
I filed my I-485 application concurrently with my EAD application in early October of last year; however, I did not apply for Advance Parole (AP) at that time. My application was approved last December, but for various reasons, I still did not apply for AP. At the time, I estimated there was a high probability that I would need to return to my home country sometime during the first half of this year. I also still held a valid H-1B visa at that time. Now that my H-1B visa has just expired, should I apply for AP? I’ve heard that current processing times for AP are approaching one year; given this, is there any practical point in applying for it now?
Alan Lee, Esq. answers,
I assume that the application that was approved last December was for the EAD and that your I-485 remains pending. The advance parole is a safer way to travel in your case as it does not entail interviewing with a US consular officer if it is the visa that is expired, but not the H1B status itself. If the status is expired, the only choice for leaving would be advance parole. During the Trump administration, temporarily leaving the US is not recommended for nonimmigrants for nonemergency reasons because of the heavy vetting at the consulates and airports. You can apply for advance parole now, but note that the published USCIS processing time for 80% of cases exceeds a year. (For the readers, this timeline is not applicable in many situations in which USCIS receives concurrent applications for both EAD and advance parole and chooses to process both at the same time).