Gary Endelman and I have
advocated for administrative fixes to improve the immigration system since
March 2010. In The Tyranny of Priority Dates we proposed
that foreign nationals caught in the crushing employment-based (EB) or
family-based (FB) backlogs could file an adjustment of status application, Form
I-485, based on a broader definition of visa availability. We wrote a follow up
blog in August 2014 entitled DO WE REALLY HAVE TO WAIT FOR GODOT?: A LEGAL BASIS
FOR EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION little
realizing that President Obama would announce major executive actions in
November 2014. We also forcefully advocated this position in our
response to the Visa Modernization proposals in January 2015.
As a background, INA §
245(a)(3) only allows for the filing of
an I-485 adjustment of status application when the visa is “immediately
available” to the applicant. It has always been linked to the monthly State Department
Visa Bulletin, which announces dates based on actual visa availability. This
has resulted in decade long backlogs in some preference categories. Systemic
visa retrogress retards economic growth, prevents family unity and frustrates
individual ambition all for no obvious national purpose. We
advocated that there may be a different way of determining visa availability
that would not be determined by when visas can actually be given, but when
there is a possibility of visas becoming available in the near future, or when
there is at least one unused visa remaining in the preference category. Under
this new interpretation of visa availability, we proposed that there could be
two filing dates: the first would be based on unused visas, and the second is
when there are actual visas, which would result in a green card for the
applicant.
Godot has finally arrived!
The U.S. Department of
State, starting in October 2015, has issued a visa bulletin with two
“application dates” for beneficiaries of family-based and employment based
immigrant petitions. There is an application
final action date when the beneficiary will be eligible to receive
his/her green card, but there is also a date
for filing visa or adjustment applications which is when the
beneficiary will be eligible to file
, and if the beneficiary files an adjustment of status application, he or she
will get the benefits thereof such as an Employment Authorization
Document (EAD), advance parole and protection under the Child Status Protection
Act (CSPA).
As an example, Indian born
applicants with approved I-140 petitions in the EB-2 category whose priority
dates are July 1, 2011 or earlier can begin submitting adjustment applications
in October 2015 even though they would not get the actual green card until
their priority dates are current under the application final action date table, which could be many years
yet. In the meantime they could avail themselves of the benefits of an
adjustment application, such as an EAD, advance parole and protecting the
child from aging out under the CSPA. It bears repeating that only
beneficiaries with priority dates of May 1, 2005 in the EB-2 category can
actually receive their green card next month. This new version of
the visa bulletin will greatly impact many who have been caught in the crushing
backlogs.
Visa availability will no longer
be defined by when visas are actually available. The October Visa Bulletin now
views it more broadly as “dates for filing visa applications within a time frame
justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as "eligible applicants" who "are able to take one of the final steps in the
process of becoming U.S. permanent residents." These new interpretations
provide more flexibility for the State Department to move the filing date even
further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application, along with all the accompanying benefits, and to even lock in the age of a child under the CSPA, whether the applicant is in the United States or processing at a US consulate. While I strongly advocate that the same interpretation concerning visa availability that applies to eligibility for adjustment of status should also apply to the CSPA, we need to await further confirmation from the government on CSPA eligibility.
Here are some preliminary
observations after brainstorming with some of my esteemed colleagues at the
Alliance of Business Immigration Lawyers, www.abil.com,
although these are my own views. We must await further guidance from the DOS and USCIS to be sure, but must strongly advocate for these positions:
- I-485 adjustment applications filed under the new filing priority date will result in the same benefits, which is EAD, Advance Parole, 204(j) portability and CSPA protection.
- With respect to an “after acquired” spouse, where the principal already has a pending I-485, the spouse can file under the new filing priority date. Ultimately, both the principal and spouse’s I-485 application will get adjudicated when the priority date of the principal become current under the final action priority date.
- There is no prohibition to filing a concurrent I-140/485 or I-130/485 under the filing priority date.
- With respect to a priority date that has been captured from an old EB petition, the same rules apply – you have to see whether the captured priority date coincides with the filing priority date or the final action priority date.
- There may be no need to submit a medical with an I-485 filed under the filing priority date, especially when there is a long interval (years) between the filing and the final action priority date.
- The new policy applies to both Family I-130 and Employment I-140 petitions.
- With respect to consular processing of cases, the filing priority date would be equally applicable, especially to lock in the age of a child under CSPA.
- Do we have to rush to file all our I-485s in October 2015 itself? The jury is not yet out whether the dual priority dates system would cause more backlogs and retrogression; although probably not, since the filing priority date, unlike the 2007 July Visa Bulletin, does not signify that visas are immediately available. We have enough time (around the 10th of the month) to wait and watch as to how the dates will progress in November and after that.
When
Gary Endelman (who has since been appointed as an Immigration Judge) and I commented
on the Visa Modernization proposals, we questioned whether the government was
truly serious about ameliorating some of the problems in the immigration
system through administrative reform. The DOS and DHS have lived up to expectations. At the end of the day, immigration
policy is both about fairness, as well as how the United States can attract and
retain the best and the brightest regardless of nationality who wish to join us
in writing the next chapter of our ongoing national story. There are two ways
to achieve progress. Congress can change the law, which it persists in refusing
to do, or the President can interpret the existing law in new ways, which he
has done. Obviously, the innovations in the visa bulletin are still a
band-aid. It would be desirable if applicants get their green cards rather than
remain perpetual adjustment of status applicants. For that to change, for sweeping Comprehensive
Immigration Reform to become reality, all of us must realize that immigration
is not a problem to be controlled but an asset to be maximized.
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