Visa Lawyer Blog

Articles Posted in Adjustment of Status

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It is our pleasure to bring you the latest in immigration news including recent USCIS announcements, workload updates, tips, and important reminders to avoid delays in application processing or rejections. For more information please contact our office.

Comment Period for Proposed USCIS Form Revisions:

The Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) have proposed changes to the following USCIS forms. DHS and USCIS invite the general public, organizations, and federal agencies to submit comments on the proposed revisions by the deadlines outlined below:

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The Gillard Government made a commitment in 2010 to release all children from immigration detention by June 2011, but still 1000 children languish in the harsh environment of immigration camps around Australia. The Refugee Action Collective organised a protest on July 9, 2011 outside the Melbourne Immigration Transit accommodation which is used for the detention of unaccompanied minors.

In the federal register released on October 16, 2015 President Barack Obama announced refugee admission numbers to be allocated for fiscal year 2016, based upon Section 207 of the Immigration and Nationality Act and Congressional oversight.

According to the federal register, up to 85,000 refugees will be granted admission to the United States during fiscal year 2016 in the national interest and as a result of growing humanitarian concerns in Africa and the Near East/South Asia, regions where the majority of admission numbers have been allocated—a total of 59,000 altogether.The 85,000 cap will be distributed among specified regions that pose special humanitarian concerns to the United States. Africa is to be allocated 25,000 admissions; East Asia, 13,000; Europe and Central Asia, 4,000; Latin America/Caribbean, 3,000; Near East/South Asia, 34,000; and 6,000 refugee admissions will remain unallocated in order to address regions where future necessity may arise.

The 6,000 unallocated refugee admissions will be allocated according to ‘regional ceilings’ that will be imposed by Congressional Judiciary Committees as needed. In addition, unused refugee admissions in one region may be transferred to other regional areas of concern as needed.

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Photograph taken at Ellis Island

Further changes have been made to the November Visa Bulletin published earlier this month by the Department of State. The dual chart system remains in place including the ‘final action date’ chart and ‘date of filing’ chart. So what has changed? USCIS has become more involved in the application process for family-sponsored and employment-based immigrant applications since the introduction of the date of filing chart. A disclaimer has now been added to the November Visa Bulletin above the date of filing chart which instructs applicants to visit the USCIS website for more instructions on how and when the chart is to be used. USCIS has created this new web page to notify applicants whether they can proceed with applications for permanent residence based on the date of filing chart published monthly on the Visa Bulletin. The website will be updated within about a week of the publication of the Visa Bulletin every month. The webpage is intended to provide applicants information in regards to visa availability for family-sponsored and employment-based immigrant visas for each fiscal year, letting applicants know whether the filing date chart is enforceable. So far, USCIS has indicated that the filing date chart for October and November 2015 is enforceable.

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Yesterday, USCIS released a draft version of what will eventually be used as the policy manual guide of extreme hardship. The policy manual has been created for the purpose of assisting adjudicating officers in making final determinations on the merits of waivers of inadmissibility. Certain aliens, who are found to be inadmissible under specific grounds of the law, can apply for a discretionary waiver in order to adjust their status to permanent residence. In order to do so, the alien must demonstrate their relationship to a qualifying relative (US Citizen or LPR family member) and establish that the qualifying relative would experience an “extreme hardship” in their absence. The policy manual includes guidance relating to general considerations, interpretations of existing law, and adjudication steps that will help consular officers establish whether a waiver of inadmissibility merits a favorable decision and whether the burden of proof has been satisfied by the applicant. The draft highlights important requirements that must be taken into consideration by adjudicating officers when considering the merits of a waiver application. Such requirements include 1) whether the alien has demonstrated that they possess a qualifying relative 2) the presence of an extreme hardship to the qualifying relative and 3) discretionary measures based on the totality of the facts presented. USCIS has invited the public to comment on the draft from now until November 23, 2015.

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Last week, we reported to our readers that on September 25th the Department of State and USCIS re-issued the October Visa Bulletin and changed the date of filing chart drastically, rolling back the ‘Dates of Filing’ for heavily used visa categories, including employment based and family-sponsored petitions. The American Immigration Lawyers Association, along with policymakers, and immigration advocates, are urging Congress, the White House, USCIS, and Department of State to restore the initial dates of filing that were authorized and released on September 9th 2015 with the October Visa Bulletin.

If you would like to pressure the government to honor the initial dates of filing, released on September 9th, we invite you to sign the White House petition by clicking here. We must hold the government accountable for their actions by advocating for the restoration of the initial dates of filing. With the release of the October Visa Bulletin, the DOS introduced a dual chart system for the first time in history which included a new ‘date of filing’ chart. The new date of filing chart would have allowed thousands of foreign nationals to file their adjustment of status and employment authorization applications, before a visa became available to them. This action was made by the DOS in an effort to modernize and streamline our immigration system as part of President Obama’s Executive Actions on Immigration announced on November 20th of last year. Due to the recent drastic changes that have been made to the date of filing chart, we encourage you to become involved by signing the petition or writing to your local Congressman/Congresswoman. Thousands of foreign workers and family members of foreign nationals have been impacted by the recent changes, given that the majority of applicants who would have been eligible to file for their green card applications and employment authorization cards, will no longer be able to do so. They must continue to wait until their priority date becomes current on the date of filing chart.

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As some of you may have heard, on September 25th the US Department of State made some additional changes to the October 2015 Visa Bulletin. These changes include new and earlier date of filing cut-offs than those initially released on September 9th. The date of filing chart released on September 25th will replace the prior one released on September 9th. To view the complete changes please click here. These new changes have raised several concerns for our readers.

What caused the visa numbers to be re-issued after their release on September 9, 2015?

Though we cannot ascertain the exact reasons why these changes have come about, we can make the fair assumption that these changes were likely due to workload concerns and a lack of resources necessary to accommodate the large amount of adjustment of status applications expected to be filed beginning October 1st. The anticipated workload may have given the Department of State no choice but to retrogress the visa numbers in heavily used categories.

Is the Department of State reneging on their promise to modernize and streamline the immigration process as part of Obama’s executive actions on immigration?

While it is disappointing that the visa numbers on the ‘date of filing’ chart have retrogressed, a departure from the promised executive actions does not seem to be the case. The visa numbers have been adjusted in an effort to streamline the immigration process in a way that is viable, practical, and effective. Dates of filing have been adjusted for family-sponsored and employment-based preferences to create a practical timeline that provide CIS the sufficient time needed to process the large volume of anticipated adjustment of status applications.

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On Monday the Senate will be voting on a short-term spending bill introduced by Senate Appropriations Committee Chairman Thad Cochran. If passed, the bill will temporarily fund the government through December 11th of this year. If the bill is not passed, the country will face a government shutdown beginning on October 1, 2015. The temporary funding bill called a continuing appropriations resolution will be required to keep government agencies afloat for the remainder of the year. Congressional Republicans and Democrats have been at odds with one another since the Planned Parenthood scandal was brought to light. The non-profit organization’s involvement in the practice of procuring tissues from aborted fetuses for the purpose of medical research has been deeply contested by Republicans, who believe Planned Parenthood should no longer receive federal funding. Due to this impasse, no resolution bill has yet been agreed upon.

Repercussions on Immigration: LCA’s and PERM applications

A government shutdown would mean that various government agencies may not be operating at full capacity. Due to this we urge our clients to file urgent Labor Condition Applications or PERM applications prior to October 1, 2015. While the shutdown will have an effect on the economy, families, and business throughout the country, entities not affected by the government shutdown include USCIS, the military, airport security, FBI, Border Patrol, Social Security, Medicare, Medicaid, Food Stamps, among others.

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On September 9th the Department of State and USCIS jointly announced new procedures that will allow family-based and employment-based applicants stuck in immigrant visa backlogs to apply for an immigrant visa (adjustment of status) before their priority date becomes current and an immigrant visa becomes immediately available to them. These new procedures will be implemented beginning October 1, 2015 as part of President Barack Obama’s executive actions on immigration with the purpose of modernizing and streamlining our legal immigration system for the 21st century. These new changes were introduced in the October Visa Bulletin. 

What is the Visa Bulletin?

The Department of State publishes a monthly report of visa availability known as the ‘Visa Bulletin.’ The Visa Bulletin is essentially a guide to be used by applicants and consular officials denoting visa availability for the issuance of visas at consulates and embassies worldwide. USCIS utilizes the Visa Bulletin to determine whether Form I-485, Application to Register Permanent Residence or Adjust Status, can be accepted for filing and processing. In order to file Form I-485 a prospective immigrant must determine whether a visa is available to them at the time the Form I-485 is filed and at the time Form I-485 is approved. The Department of State and Department of Homeland Security work together to revise the Visa Bulletin on a monthly basis estimating immigrant visa availability for prospective adjustment of status applicants. The DOS allocates available visas by providing visa numbers according to the prospective immigrant’s preference category, country of birth and priority date. This allows distribution of visas for all preference categories. A prospective immigrant’s priority date can be found on Form I-797 Notice of Action or ‘Receipt Notice’ for the petition filed on the applicant’s behalf.

What is a Priority Date?

A priority date is generally defined as the “date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS.”  For employment-based petitions, “if a labor certification is required to be filed with your immigrant visa petition, the priority date is the date the labor certification application was accepted for processing by the Department of Labor.”

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In order to apply for permanent residence, a relative or American employer must file an immigrant petition on your behalf. Family-sponsored and employment-based petitions are subject to visa limitations unlike petitions filed by immediate relatives who are US citizens. Immediate relative petitions remain unlimited and are always available. This means that if your petitioner is your immediate relative and a US Citizen you can file your I-485 at the same time as your immigrant petition.

In order to understand whether a visa is available to you and whether you can proceed with filing your application for permanent residence, you will need to keep a close eye on the Department of State’s Visa Bulletin. 

Family Sponsored Preference Categories are as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

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In this blog we are answering 5 of your frequently asked questions in detail. Please remember that every case and every story is different and unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. For any further questions call our office for a free legal consultation. We thank you for your continued trust in our law office.

Q: I would like to understand if my case has any possibility of success. I am a Mexican citizen, my mother is a US Citizen. Years back she began the immigration process for me, but lost a notification due to a change of address. The whole process stopped. We both talked and would like to reinstate the process, can you please assist?

A: Thank you for your question. Did you save a copy of the case file that was mailed to CIS? It is important for an attorney to first evaluate your application to make sure you sent all necessary documentation along with your application. You will also need to provide copies of your receipt notices with your corresponding receipt numbers. It may be that you may have received a request for additional evidence. If you failed to change your address with CIS or if you failed to respond to CIS within the required timeframe you will need to reinstate your application. Our office has experience reinstating applications with CIS however the process can be time consuming. In some cases it is better to re-file to save time. If you have criminal history, have been deported, or detained these factors will have a profound impact on the success of your application. To determine the best strategy for you please contact our office.

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