Singh (not precedential): BIA Likely Would Remand If Employment-Based I-485 Pending

When you appeal the decision of an immigration judge, you file the appeal with the BIA (the Board of Immigration Appeals). If you can obtain legal permanent residence through a valid application, you may ask the BIA to remand the case back to the immigration judge to give you a chance to get legal permanent residence instead of pursuing the appeal.

In Singh v. Gonzales, No. 06-2558 (3d Cir. July 18, 2007) (not precedential), the Third Circuit explained that there is a good chance that the BIA would reopen and remand a case if there is an employment-based application pending for legal permanent residence pending, even if the waiting time for a visa to be available has not yet finished. Taking a step back, if you have a visa petition pending based on employment, you can file for a green card but USCIS will not actually grant it to you until a certain waiting time is finished, because Congress made only a small number of slots available compared to all the people who want them.

For family-based requests for green cards, the BIA has said it will not reopen a case for a pending green card application if the waiting time has not yet finished. By mistake, the BIA in this case applied the same rule for Mr. Singh's employment-based application. For some reason, the BIA had regularly applied a different rule -- if there is a waiting employment-based request for a green card, the BIA regularly reopened cases even though the waiting time for the green card had not yet run. The Third Circuit required the BIA to follow that rule in this case, too, and to reopen the case because if Mr. Singh had competent counsel in 2003, he could have had his case remanded. The key case for employment-based adjustments is Matter of Garcia, 16 I&N Dec. 653 (BIA 1978).