Visa Bulletin Is Moving Fast: Should I File My I-485 Now Under Chart B?

With the Dates for Filing chart moving forward significantly, a lot of people are suddenly eligible to file Form I-485.

Should you file now, or should you wait?

My view is simple: if you have the opportunity to file your I-485 now, there are strong reasons to do it.

1. Why file now if your Final Action Date is not current yet?

A very common situation looks like this:

• Your Final Action Date is not current yet;

• You are currently maintaining H-1B/L-1/O-1 status; and

• Your I-140 was sponsored by your current employer.

Filing the I-485 now can give you significantly more flexibility.

Once your I-485 has been pending for at least 180 days, AC21 portability may allow you to change employers without redoing the PERM process, as long as the new permanent position is in the same or a similar occupational classification.

This can become especially important if you are laid off later while waiting for your Final Action Date to become current.

Without a pending I-485, if you are laid off before you have a chance to file, you may need to rely on a new employer to redo PERM process before you can file the I-485.

And H-1B extensions may become harder after Final Action Date current.

If you have an opportunity to file the I-485 now, take that opportunity.

2. Filing for a combo card (EAD + AP) does NOT mean you have to give up H-1B status

This is probably the biggest misunderstanding.

You can file an I-485 together with applications for an EAD and Advance Parole and still continue maintaining your H-1B status.

Having an EAD/AP available does not mean you have to start relying on it.

Think of the combo card as an additional layer of flexibility rather than something you have to immediately rely on.

If you later face an unexpected layoff or another disruption to your H-1B employment, having a pending I-485 and EAD/AP may give you additional options.

As long as you continue to live and work as an H-1B visa holder, for example, only work to your H-1B petitioner, travel with valid H-1B visa stamp, you can continue maintaining H-1B status even after receiving your EAD/AP.

3. Is the combo card all upside?

Not necessarily. One practical problem is timing.

EAD/AP is currently issued with an 18-month validity period, while renewal processing can take close to 12 months. You may have to start preparing the next renewal not long after receiving your current card.

If you decide to rely entirely on EAD for work authorization, any gap in work authorization could force you to stop working.

That is another reason not to give up your H-1B, L-1, or other nonimmigrant status too early.

4. Can my EB-2 I-140 downgrade to EB-3 and file I-140+I-145 together?

Yes. But be prepared for a long wait.

We have seen EB-2 to EB-3 downgrade/concurrent-filing cases fall into what we call the “black hole”, the I-485 stays pending for a long time, even after the Final Action Date becomes current.

If the delay becomes unreasonable, a mandamus lawsuit may be an option. But you should still be prepared for a long-pending I-485.

5. Take aways:

File the I-485 when you have the opportunity.

Keep EAD/AP as a backup. You don’t have to use it right away.

And if you can, keep your H-1B, L-1, O-1, or other nonimmigrant status until your green card is approved.

This article provides general information only and is not legal advice.