On Thursday, November 20, along with President Obama’s announcement regarding his Executive Action on Immigration, Department of Homeland Security (“DHS”) Secretary Jeh Charles Johnson issued a memo to the Directors of U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) directing the agencies to take action on the President’s announcements to improve the employment-based immigration system. The DHS memo provides a general overview of proposed changes the government wishes to implement, relating to skilled immigration, in order to address some longstanding issues and problems in our antiquated business immigration system. For purposes of this article, the authors will focus on the proposal to increase foreign worker portability by permitting certain skilled workers to pre-register for adjustment of status.
Under Secretary Johnson’s directive, USCIS is expected to develop new regulations or otherwise issue guidelines that will allow foreign nationals with an approved second step (employment-based immigrant visa petition, Form I-140) to pre-register for adjustment of status in order to obtain the benefits of a pending Application for Adjustment of Status (Form I-485) even if an immigrant visa number is not currently available for the foreign worker. This proposal will not only benefit the employee who is the principal green card applicant by permitting the principal to apply for an employment authorization document and travel document, but it will also enable his/her dependents to obtain employment authorization and immediately enter the U.S. labor market.
Of equal or greater importance, once the last step (Form I-485) has been pending for at least 180 days, the principal is then permitted to move into another position with his/her employer and even port to another employer so long as the move is to a similar occupation. In anticipation of pre-registration of adjustment of status, applicants should gather the documentation required to be filed with the I-485 application:
1.) Birth certificates for the principal and each dependent family member. Affidavits of birth (in lieu of birth certificates) may be used for those instances when a birth certificate is not obtainable from the applicable government authority;
2.) Marriage certificate (if a spouse is applying); and
3.) Copy of most recent tax return and paystubs of principal applicant for the last 2 months.
In addition, once the guidelines are issued and the filing of Form I-485s are permitted, each applicant and family member should arrange for a medical examination by a civil surgeon appointed by DHS.
Stay tuned for further developments relating to the implementation of the Executive Order.