By: Ana Maria Schwartz
Opening up the Visa Bulletin for the first time and figuring out what a Priority Date is has been a rite of passage for nearly every immigration attorney. Soon we learn that the word “preference” is just a term of art, that time can move backwards, and that we can only expect the unexpected. Our clients live their lives based on when the U.S. Department of State says are the next round of cutoff dates and based on this we file or don’t file the Adjustment of Status or the documents at the NVC.
A NEW HOPE
Starting with the October 2015 Visa Bulletin a dual chart system was introduced and along with that some new terms- “dates for filing” and “final action” dates. The “date of filing,” according to the Visa Bulletin, indicates, “when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.” The “final action” date indicates the date a green card or immigrant visa may actually be approved for an applicant. This change in the visa bulletin is connected with the Obama administration’s plans to streamline the immigration system. Being able to apply for permanent residence in advance allows for cases to be approved as quickly as possible and reunite families separated by our laws.
When the Date for Filing becomes current, fees can be paid to the NVC and all documents can be submitted. We expect that there will be some sort of notification that the case has been pre-approved prior to the official Final Action date if it is submitted far enough in advance. One pitfall during this wait time could include a change in the documents the State Department mandates for a given country. Another possibility is the need for additional documents for a client if their lives change in any meaningful way, including spending time in the United States or other countries that may trigger the requirements to obtain documents from that country.
DON’T FORGET ABOUT USCIS
USCIS also has a process that allows for the filing of an I-485 that closely mirrors the State Department’s, but USCIS has established that they will retain their own right to follow the “dates for filing” priority dates or not. USCIS has indicated that they will likely announce their decision for the following month approximately one week after the Department of State makes their monthly announcement. Updates for USCIS can be found at http://www.uscis.gov/visabulletininfo. This website allows USCIS to indicate if the Dates for Filing Visa Applications chart will be followed. “Unless otherwise stated on our website, the Application Final Action Date chart will be used to determine when you may file your adjustment of status applications.” The criteria USCIS will be using is if “there are more immigrant visas available for the fiscal year than there are known applicants, you may use the Dates for Filing Applications chart.”
USCIS states that if you are filing your Form I-485 based on a category which has a visa currently available according to the “The Application Final Action Date” or the “Dates for Filing Applications” chart, “you may request that USCIS issue your work and travel authorization” and they will do so for a one year validity period. In order to file for the Adjustment of Status, the individual typically must be in the United States in valid status at the time the priority date is current. It has not been made clear at this time if this means that the immigrant must be in valid status simply at the time of filing or if they must maintain their status, such as through an H1B visa, for the duration of the process.
BUT WAIT, THERE’S LESS
As we know, the Visa Bulletin is issued several weeks in advance. The October 2015 bulletin is now the subject of a class action lawsuit because employment-based priority dates announced on September 9, 2015 retrogressed immediately before the start of October, leaving many people in the lurch having not only paid attorney fees but also invested time and money into other endeavors such as placing the down payment on a house thinking the green card was all but inevitable. It is advisable to counsel clients that unforeseen changes can happen at any time.
GET OUT IF YOU CAN
We also know that in this new system a pending adjustment of status may be changed from one eligibility basis to another, if the requirements are met. This could include a spousal F2A application where the LPR spouse naturalizes and thus there is a green card immediately available to the now-citizen’s spouse. This allows for maximum flexibility for our clients.
One optional item when submitting the application is the medical exam, particularly as it relates to the in country Adjustment of Status. There are a number of views as to if it is important to submit, but remember that the exam is only good for one year from the date it is performed. In general, my office will plan on advising clients wait to perform this for fear of having it expire while we wait.
Issues we are not sure about what this new system may mean for Child Status Protection Act beneficiaries. If someone’s priority date is protected by the announcement of the date for filing is unclear at this time. This, along with the question about if someone must maintain status for the entirety of their pending application are the biggest questions I have, but clearly there are many others. We have been promised a Frequently Asked Questions section will be provided in the future to answer this and several other unknowns.
Ana Maria Schwartz is the founding partner of the Law Offices of Ana Maria Schwartz, a boutique immigration law firm with offices in Houston, TX and Austin, TX. For more information about Ana Maria, visit her website at www.schwartzimmigration.com.