§ 204.5(g)(2), an employer filing an I-140 petition must demonstrate its ability to pay the proffered wage “at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.” According to a policy memo dated May 4, 2004, by William R. Retention of the Priority Date, Ability to Pay Although the USCIS is required to adjudicate over 100,000 pending I-485 adjustment cases by September 30, it is very likely that the USCIS will not be able to do so, and so we will continue to see these issues in the new 2022 fiscal year with respect to pending I-140 and I-485 cases. Below are some examples of RFEs we have been seeing. These I-140 petitions were concurrently filed with I-485 applications when the India employment-based third preference (EB-3) date in the October 2020 Visa Bulletin advanced ahead of the India employment-based Second preference (EB-2) date. Mehta, Sung-Min Baik* and Kaitlyn Box**Įmployers who have filed concurrent “downgrade” I-140 petitions are facing an increasing number of requests for evidence (RFE).
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