Posted onJanuary 29, 2016|Comments Off on How to get an I-601 waiver for INA 212(a)(6)(C)(i), immigration fraud or misrepresentation
Section 212(a)(6)(C) of the Immigration & Nationality Act (INA) permanently bars you from immigrating to the U.S. or being lawfully admitted to the U.S. when you have been found to have (1) committed fraud or willful misrepresentation to gain immigration benefits, or (2) made a false claim to U.S. citizenship for any purpose or benefit under immigration, federal or state law.
If you are inadmissible due to fraud or misrepresentation, you need an I-601 waiver, available under INA § 212(i), to get a green card or immigrant visa. There is no waiver for false claims to U.S. citizenship, but you may have defenses and exceptions to establish the bar does not apply to you.
What Must You Submit When Requesting an I-601 [INA § 212(i)] Waiver?
A section 212(i) waiver applicant must submit a completed and signed Form I-601, Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.
The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing extreme hardships; expert opinions; medical documentation; and reports of conditions in your home country.
Evidence of extreme hardship
If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, or K visa petitioner will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”
(NOTE: A U.S. citizen or permanent resident son or daughter is not a qualifying relative for the purpose of proving extreme hardship in an I-601 fraud waiver request.)
Similarly, if you are a VAWA self-petitioner applying for the waiver, you must show the denial of admission will result in “extreme hardship” to yourself (or qualifying relatives).
The agency considers a variety of factors when determining whether there is extreme hardship. They include:
Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
Education: Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.
Does Having an Immigration Attorney Make a Difference?
Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.
Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation. A good lawyer will help you prove your qualifying relatives will suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you. If you are a VAWA self-petitioner, the lawyer will also help prove you personally would suffer extreme hardship if you are denied admission.
Immigration fraud/misrepresentation is particularly serious. The presence of aggravating factors (e.g. criminal record) and lack of positive factors (e.g. active involvement in community or volunteer organizations) could lead to a denial of your waiver request. Needing another waiver, such as a section 212(h) waiver (for criminal and related grounds) or a section 212(a)(9)(B)(v) waiver (for unlawful presence), further complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.
It’s much harder to get an I-601 waiver [INA § 212(i) waiver] when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.
A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onDecember 30, 2015|Comments Off on Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?
A foreign national who is living overseas and is in a relationship with a U.S. citizen has two main visa options to come to the U.S., get married, and apply for a green card: the B-2 visitor visa and the K-1 fiancé(e) visa. Each route has advantages and disadvantages.
WHAT YOU NEED TO KNOW ABOUT THE B-2 VISITOR VISA
The B-2 visitor visa is for temporary visits only. Entering the U.S. on a B-2 visa and then applying for a marriage-based green card carry benefits and risks.
Benefits of the B-2 to Green Card Route
1. B-2 visa applicant or visa holder does not need a sponsor
An invitation letter or Affidavit of Support from an American sponsor is not required for a B-2 visa. Unlike K-1 fiancé(e) visa applicants, B-2 visa applicants are not required to prove a bona fide relationship with a U.S. citizen significant other.
B-2 visa applicants must instead qualify on the basis of their own residence and ties abroad. There is no medical exam to complete or immigration-related petition for a U.S. citizen relative to file. They just need to file the online nonimmigrant visa application and pay the application fee.
Legitimate purposes of the B-2 include tourism, vacation (holiday), and visits with friends or relatives. Getting married to a U.S. citizen (or permanent resident) during your visit is not prohibited – as long as you intend to leave the country before your authorized period expires.
2. General desire (and even preconceived intent) to immigrate – in and of itself – does not prevent B-2 visa holder from adjusting status as the spouse of a U.S. citizen
The B-2 to green card route works best when the foreign national decides to get married to the U.S. citizen only after entering the country. The couple might be undecided about the future of their relationship until they spend more time together during the visit. If the U.S. citizen surprised the B-2 visitor with a marriage proposal after he or she entered the U.S., the visitor could show the original intent was truly a temporary visit.
A general desire to remain in the U.S ., when there is an opportunity to do so legally, is not a problem. Furthermore, a fixed intent to immigrate does not bar immediate relatives (e.g. spouses) of U.S. citizens from adjusting status — unless there are other adverse factors that allow USCIS to deny adjustment as a matter of discretion.
3. Concurrently filing the I-130 and I-485 application (one-step petition/application) is the most streamlined way to get a marriage-based green card
Under normal circumstances, a B-2 visitor who is physically present in the U.S., after lawfully entering the U.S., may file a Form I-485 adjustment of status application at the same time the U.S. citizen files the Form I-130 immigrant petition with U.S. Citizenship & Immigration Services (USCIS). The B-2 to green card route is commonly used by immediate relatives of U.S. citizens.
The one-step filing of the I-485 and I-130 is a much more streamlined process than applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate overseas, based on marriage to a U.S. citizen. You may also stay with your spouse in the U.S. while your green card application is pending, instead of being separated from each other.
Drawbacks of the B-2 to Green Card Route
1. B-2 visa applicant or visa holder must show non-immigrant intent
To get the B-2 visa or to enter the U.S. as a visitor, the foreign national must have nonimmigrant intent. You need to prove you have strong ties to your home country that you will not abandon and you will leave the U.S. before your authorized stay expires.
The B-2 visa to green card route works best if you are not yet engaged to the U.S. citizen or did not make specific plans to immigrate to the U.S. after entering the U.S.
Entering the U.S. as a visitor simply to marry a U.S. citizen (or permanent resident) does not violate U.S. immigration law, as long as you leave before your authorized stay expires. While this purpose is legitimate, it still carries risks and may lead to your being denied a visitor visa or entry into the U.S. as a visitor.
If you are applying for a visitor visa, you will be asked on the nonimmigrant visa application, and possibly at the visa interview, whether you have any immediate relatives in the U.S. This includes a fiancé(e). If the consular officer learns you have a U.S. citizen fiancé(e) or believes you will marry the fiancé(e) during your visit, you will likely be denied a visitor visa. This is because the consular officer might suspect you have no intent of leaving the U.S., but will overstay, get married, and apply for a green card to live permanently in the U.S. with your American spouse.
At the U.S. port of entry, the customs officer may deny your entry for the same reason, even if you present a valid visitor visa. If the U.S. Customs & Border Protection (CBP) finds that you cannot show nonimmigrant intent and therefore lack the proper travel documents, it has two choices. It will either (a) allow you to withdraw your application for admission (and likely revoke your visa) OR, (b) issue an expedited removal order, which bars you from returning to the U.S. for five years, unless you obtain a Form I-212 waiver. Either way, you will be instructed to return home on the next available flight.
In certain situations, the CBP might also find that you willfully misrepresented the purpose of your visit to gain entry into the U.S. as a visitor. It may then deny your entry and issue an expedited removal order on this additional ground. If you cannot convince CBP to refrain from issuing (or to vacate) a charge of willful misrepresentation, you face a lifetime bar to getting a green card or immigrant visa. You will then need to qualify for and obtain an I-601 [INA § 212(i)] waiver of inadmissibility.
I-601 waiver applicants must show their qualifying relative (U.S. or permanent resident spouse or parent) will suffer “extreme hardship” if they are not admitted to the U.S. as an immigrant. This waiver is challenging to get.
2. Fraud or willful misrepresentation to gain immigration benefits prohibits B-2 visa holder from getting a green card
Lying about the purpose of your visit or about whether you have an American fiancé in the U.S. could be deemed to be fraud or willful misrepresentation to gain immigration benefits.
The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status. When a B-2 visa holder marries a U.S. citizen or applies for permanent residence within 30 days of entry, the DOS presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred between 30 and 60 days of entry, the DOS does not presume, but may content there was misrepresentation. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.
[UPDATE: On August 1, 2017, the DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”]
USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. Nonetheless, USCIS may use it as a guide.
If USCIS finds you committed fraud or willful misrepresentation to get the B-2 visa or to enter the U.S. as a visitor, this presents a permanent bar to getting a green card. You may also be placed in removal proceedings before the Immigration Court.
You may challenge the finding by showing you did not engage in immigration fraud or willfully misrepresented material facts when you applied for the visa or when you sought entry into the U.S. If you are unable to overcome the finding, you will need to apply for and receive an I-601 waiver of inadmissibility.
3. Concurrent filing of the I-130 and I-485 (one-step petition/application) involves strict eligibility requirements
The visitor visa is often misused as a way to enter the U.S., get married, and then apply for adjustment of status (green card) to avoid the longer process of applying for a K-1, K-3 or immigrant visa at the U.S. Consulate.
USCIS officers will carefully scrutinize your marriage to confirm it’s bona fide, i.e. entered into with the intent of establishing a life together as spouses, and not to circumvent U.S. immigration laws. You need to present documentary evidence of your shared residence, commingling of financial resources and other factors showing you have a real marriage. You also have to testify consistently and credibly as to the nature of your relationship and courtship.
As the I-485 applicant, you must show you are not inadmissible due to criminal convictions, health-related reasons, immigration violations, or other factors. The USCIS officer may conduct a full review your records (including your visitor visa application) and ask you questions at the interview to verify you are admissible to the U.S. It may investigate your true intent when you applied for the visa or sought entry on the visa.
An immigrant visa must also be available to the I-485 applicant. If your spouse is a permanent resident, he or she may file an I-130 petition for you, but you may not file for a green card right away due to the backlog in the F2A (spouse of permanent resident) category.
When you are not in the immediate relative (e.g. spouse of U.S. citizen) category, you must be in lawful nonimmigrant status when you file an I-485. You will need to extend or change status to remain lawfully in the U.S. during the wait. Or you might have to wait until your permanent resident spouse becomes a naturalized U.S. citizen. Because adjusting status as the spouse of a permanent resident carries many obstacles, you likely will have to timely depart the U.S. and apply for an immigrant visa at the U.S. Consulate when one becomes available.
WHAT YOU NEED TO KNOW ABOUT THE K-1 FIANCE(E) VISA
The K-1 fiancé(e) visa is for the specific purpose of entering the U.S. to get married to a U.S. citizen and filing for adjustment of status. Entering the U.S. on a K-1 visa and then applying for a marriage-based green card carry benefits and risks.
Benefits of the K-1 to Green Card Route
1. K-1 visa applicant is not required to show nonimmigrant intent
When you apply for a K-1 visa, you are declaring immigrant intent. Getting married to a U.S. citizen and applying for permanent residence are expected. Unlike B-2 visa applicants, K-1 applicants are not required to present evidence of nonimmigrant intent or strong ties to their home country.
2. K-1 visa is the most appropriate visa for marrying a U.S. citizen in the U.S. and applying for a marriage-based green card
As a K-1 entrant, you bear no risk of being found to have committed visa fraud if you marry the U.S. citizen petitioner and apply for a green card, as you indicated you would. Because you are required to marry the U.S. citizen within 90 days, the Department of State’s 30/60 day rule does not apply at all.
The K-1 to green card route is the most direct path to obtaining a marriage-based green card when you are engaged to a U.S. citizen.
3. Adjustment of status process for the K-1 entrant is generally simpler
A K-1 visa holder who completed the medical exam within the past year to get the visa is not required to do a medical exam for the I-485 application. You just need to submit the vaccination supplement, and not the entire medical report.
The U.S. citizen also does not have to file an I-130 immigrant petition after the marriage occurs. You simply file the I-485 application based on the approved Form I-129F petition, as long as the marriage occurred within 90 days of arrival in the U.S.
USCIS also has discretion to waive adjustment interviews for K-1 and K-2 entrants, i.e. fiancé(e) of U.S. citizen and children of fiancé(e). If the National Benefits Center (NBC) determines that the I-485 application qualifies for an interview waiver, and the Service Center agrees, the K-1 entrant may be granted a green card without an interview at the USCIS Field Office. This is never the case with the B-2 entrant, who must complete a marriage-based green card interview.
Drawbacks of the K-1 to Green Card Route
1. K-1 visa applicant must prove bona fide relationship with U.S. citizen
The K-1 visa option is available only if you are engaged to a U.S. citizen. It is not available if you are not committed to getting married (or you are already married), or if your fiancé(e) is just a permanent resident.
To get the K-1 visa, you must prove you have a real relationship with the U.S. citizen, communicate with each other often, and intend to marry within 90 days of your arrival in the U.S. Documentary evidence includes written correspondences, telephone records, and airline tickets and travel stamps showing the U.S. citizen has visited the K-1 visa applicant.
2. K-1 visa involves strict eligibility requirements
In the wake of the San Bernardino shooting on December 2, in which 14 people were killed after married couple Syed Rizwan Farook and Tashfeen Malik opened fire at a holiday party, Congress began to review the K-1 visa application process. Virginia Rep. Bob Goodlatte Goodlatte, chair of the House Judiciary Committee, opined that USCIS “sloppily approved” Farook’s K-1 visa petition for Malik. Goodlatte noted that USCIS failed to verify whether the Pakistani national had met her U.S. citizen husband in person before applying for the K-1 visa.
The K-1 visa process requires the couple to meet in person at least once during the two years before the U.S. citizen files the Form I-129F petition for the fiancé(e). Waiver of the in-person meeting requirement is very hard to get.
For USCIS to approve the Form I-129F petition and for the U.S. Consulate to grant the visa, both the U.S. citizen petitioner and foreign national beneficiary must meet other strict eligibility requirements.
For example, a U.S. citizen who has filed two or more K-1 petitions at any time in the past or had any K-1 petition approved within the prior two years may not file a new K-1 petition unless USCIS grants a waiver of these limitations as a matter of discretion. No waiver will be given to a petitioner with a history of violent offenses except in limited circumstances.
3. K-1 to green card route involves a longer, three-step process
You cannot live with your U.S. citizen fiancé(e) in the U.S. until you get the K-1 visa to enter the U.S. The first step of filing the Form I-129F petition and getting it approved usually takes at least 4 to 6 months. The U.S. citizen has to submit a filing fee with the petition.
After USCIS approves the petition, the K-1 applicant must then submit the online nonimmigrant visa application, pay a visa application fee, complete a medical exam, and attend the visa interview.
The U.S. Consulate usually takes several months to schedule a K-1 visa interview. At the visa interview, the U.S. Consulate may require additional documents to confirm the applicant is still in a bona fide relationship with the U.S. citizen. Administrative processing and background checks by the U.S. Consulate can add several more months to the process.
After you enter the U.S. on a K-1 visa, you must marry the U.S. citizen within 90 days of your arrival. Then you must file your I-485 application and pay the filing fee to complete the green card process. If you fail to marry within 90 days, the U.S. citizen spouse will need to file a Form I-130 petition, following marriage outside the 90 days, so you may file a Form I-485 application. If you do not marry at all, you become removable from the U.S. and you cannot adjust through marriage to another U.S. citizen or through any other means.
Although USCIS may waive the adjustment of status interviews for K-1 entrants, it usually does not. Following the San Bernardino shooting, USCIS is expected to waive even fewer interviews. At the interview before USCIS, the couple must prove they have a bona fide marriage and the I-485 applicant must show he or she is admissible to the U.S.
Want to hear about this topic? Check out this video:
WHICH IS BETTER: B-2 or K-1?
Whether to use the B-2 or K-1 to join your significant other in the U.S. depends on your situation. You need to weigh the advantages and disadvantages of each route when deciding which to take.
Consult an experienced immigration attorney to help you determine whether the B-2 or K-1 is more appropriate for you. Although both can lead to a marriage-based green card, each carries benefits and drawbacks.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onDecember 7, 2015|Comments Off on Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?
In this video, immigration attorney Dyan Williams describes two types of nonimmigrant visas: B-2 visitor visa and K-1 fiancé(e) visa. She summarizes what you need to know about each visa when using either to come to the U.S., get married to a U.S. citizen or permanent resident, and apply for a green card.
Read about Coming to America to Get Married and Get a Green Card: B-2 or K-1 visa? here.
Contact Dyan for specific advice and guidance on the B-2 visitor visa or K-1 fiance(e) visa to green card process.
This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.
Posted onNovember 26, 2015|Comments Off on Saying Thanks on Thanksgiving Day
In the United States, we celebrate Thanksgiving today (November 26). In the spirit of this holiday, I’d like to express my gratitude for your connecting with me as a current client, a prospective client, a past client, a referral source, or a friend of Dyan Williams Law PLLC, or a reader of our blog, The Legal Immigrant.
No one wants to talk to a lawyer about their problems. But eventually, most people end up needing to consult with a lawyer.
Foreign nationals who seek to immigrate to the U.S., study or work temporarily in the U.S., or become naturalized U.S. citizens usually need a trusted immigration lawyer to help them figure out the process. A full-on Do-It-Yourself (DIY) approach often gets you into trouble when it comes to navigating the U.S. immigration system. The immigration process is governed by complex laws, changes constantly, and is riddled with confusion and uncertainty.
When prospects call me on the telephone, send me an email, or submit an online inquiry to discuss their case, I strive to make our communication not only comfortable, but also surprisingly pleasant. I speak in layman’s terms they can understand, instead of use legal jargon that is meaningless to them. I ask clarifying questions to understand where they want to go with their case. I provide insightful information to steer them in the right direction.
To give prospects a sense of what it’s like to work with me, I offer a complimentary case evaluation by telephone (and sometimes by email). This involves addressing general concerns and questions about their case. I also write articles and post them on my blog, The Legal Immigrant; participate in a legal Q&A forum that deals with tough immigration issues; and speak to small and large groups on hot immigration topics.
When offering specific and detailed guidance to potential clients, I charge a consultation fee. Why? Two reasons: First, I want to avoid tire kickers who have no intention of working with me, but simply want free advice. Second, I offer tremendous value in the consultation that is worth much more than the fee. When a person is willing to pay the consultation fee, this shows there is some understanding of the value I bring. The consultation is typically the first step to creating a trust-based relationship that makes a huge difference to my clients and their families.
Your contacting me about your case, hiring me as your attorney, or referring others to me is key to having a successful law firm that serves the community well. I appreciate your support and our connection, not just on Thanksgiving Day, but every day.
May you and your family and friends experience joy and gratitude on Thanksgiving Day and beyond.
Cheers,
Dyan Williams
Founder & Principal Attorney
(612) 225-9900
dw@dyanwilliamslaw.com
Posted onNovember 25, 2015|Comments Off on Changes to the Visa Bulletin: Understanding the Two Filing Charts
On October 1, 2015, the U.S. Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA). The Bulletin revisions are meant to improve the backlog in the family-sponsored preference and employment-sponsored preference categories, where the demand for immigrant visas can – and often do – exceed the supply each year. In some categories, the wait for a visa to become available is as long as 5 to 10+ years.
Advantages with the New System
The priority date marks the applicant’s place in the visa queue. In the family-based categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.
In employment-based categories, it’s the date the U.S. Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the Form I-140, Immigrant Petition for Alien Worker (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).
The AFAD chart is consistent with previous Visa Bulletins under the old system. AFADs are the cut-off dates that determine when an immigrant visa becomes available to Form DS-260, Immigrant Visa applicants or Form I-485, Adjustment of Status applicants, depending on their priority date, preference category, and country of chargeability.
The DFA chart is part of the new system and was first introduced in the October 2015 Visa Bulletin. DFAs are the cut-off dates that determine when Immigrant Visa applicants – depending on their priority date, preference and category – should receive notice from the DOS’ National Visa Center (NVC) instructing them to submit their documents for consular processing.
Each month, U.S. Citizenship & Immigration Services (USCIS) also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing their I-485 applications. Current information is posted on the USCIS website at www.uscis.gov/visabulletininfo. When USCIS finds there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that I-485 applicants may use the DFA chart in the Visa Bulletin.
In most cases, the DFAs are later than the AFADs. Example: In the December 2015 Visa Bulletin, the DFA for the family-sponsored, second preference, F2A category is March 1, 2015 (“01MAR15”). Meanwhile, the AFAD for this same category is June 15, 2014 (“15JUN14”). If the applicant’s priority date is April 30, 2015, or otherwise earlier than the DFA, he may file the I-485 with USCIS in December 2015, even though an immigrant visa is not yet available. Under the old system, the applicant’s priority date must have been June 14, 2014, or otherwise earlier than the AFAD, before he could file the I-485 in December.
In most cases, the new system allows Immigrant Visa applicants and sometimes Adjustment of Status applicants to get a head start on filing for permanent residence.
Even if the priority date is not current in the AFAD chart, an Immigrant Visa applicant may use the DFA chart to submit required forms and documents following receipt of instructions from the NVC.
If USCIS determines the DFA chart may be used in a particular month, it will accept I-485 adjustment applications when the applicant’s priority date is earlier than the cut-off date in the DFA chart. I-485 applicants may also file for and receive an employment authorization document (EAD) and advance parole (travel document).
Those who are stuck in the employment-based backlog have greater job mobility with an EAD that is based on a pending I-485. In particular, once an employment-based I-485 application is pending 180 days or more, “portability” rights generally allow the individual to change employers, as long as the new job is in the same or a similar occupation.
Limitations of the New System
Unless otherwise stated on the USCIS website, individuals seeking green cards within the U.S. must normally use the AFAD chart for determining when they may file their I-485 applications. When USCIS finds there are fewer immigrant visas available for the fiscal year than there are known applicants for such visas, I-485 applicants must use the AFAD chart, instead of the DFA chart, to file their applications.
All applicants still have to wait for the AFAD to become current before the green card or immigrant visa can be issued.
USCIS will not adjudicate or approve the I-485 until the priority date becomes current or is earlier than the cut-off date in the AFAD chart. Even if the applicant filed early under the DFA chart, it could be another year or so before he receives an I-485 decision or green card. A final decision on Immigrant Visa applications also cannot be taken until the AFAD becomes current.
When applicants file their I-485 or Immigrant Visa application early under the DFA chart, material changes may occur while they are waiting for the AFAD to become current. They might get arrested, charged and convicted of a crime that affects their eligibility for a green card. Waivers are available for only certain criminal-related grounds of inadmissibility in only some cases.
Furthermore, failure to report material changes in one’s case to USCIS or the U.S. Consulate may be construed as fraud or willful misrepresentation to gain immigration benefits. This is a lifetime bar to obtaining permanent residence. Fraud/misrepresentation waivers are available only to applicants with a U.S. citizen or permanent resident spouse or parent who would suffer extreme hardship if the applicant was not admitted to the U.S.
Generally, all I-485 applicants must submit a Form I-693, Report of Medical Examination and Vaccination Record, completed by a designated U.S. civil surgeon.
If the Form I-693 is filed with the I-485 under the DFA chart, it may expire by the time the AFAD is current and USCIS can issue a final decision on the I-485. To avoid re-doing the immigration medical examination, I-485 applicants might want to wait until receiving a Request for Evidence (RFE) or until the I-485 interview to submit the Form I 693.
The revised procedures in the Visa Bulletin does not change eligibility requirements for I-485 and Immigrant Visa applicants. For example, individuals must still be in lawful nonimmigrant status (e.g. H-1B or F-1) when they file an I-485 application in the family-sponsored or employment-based category. Those who are out of status in the U.S. normally do not qualify for adjustment of status. Instead, they must depart the U.S. to apply for an immigrant visa.
If they depart the U.S. after accruing more than 180 days to less than 1 year of unlawful presence, they trigger a 3-year bar to re-entry. The bar is 10 years if the unlawful presence lasted 1 year or more. To be excused from the 3/10 year bar so they may obtain an immigrant visa before the 3/10 years pass, they must apply for and receive an I-601 waiver. Getting the waiver requires them to show a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted to the U.S.
A pending I-485 generally provides “authorized stay” even if the person falls out status – as long as the I-485 is non-frivolous and was timely and properly filed with USCIS. But when possible, it is best to maintain or extend lawful nonimmigrant status (e.g. H-1B or L-1) until USCIS approves the I-485. Failure to maintain status leaves the person with no safety net if USCIS later decides to deny the I-485 or revoke the approval of the underlying visa petition.
The Visa Bulletin Matters to Green Card Applicants in the Family-Sponsored and Employment-Based Preference Categories, But Not to Immediate Relatives of U.S. Citizens
The Immigration and Nationality Act (INA) limits the number of immigrant visas that may be issued, each year, to foreign nationals seeking to become lawful permanent residents in the family-sponsored and employment-based preference categories. Visas in these preference categories are not always available.
When demand exceeds supply of visas for a given year in a given category or country, a visa queue (backlog) forms. The DOS distributes the visas based on the applicant’s priority date, preference category, and country of chargeability.
When the priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, prospective immigrants can receive a final decision on their I-485 or immigrant visa applications.
If the Visa Bulletin shows “U” in a category, immigrant visas are temporarily unavailable to all applicants in that preference category and/or country of chargeability.
Immigrant visas for “immediate relatives” of U.S. citizens, however, are unlimited. An immigrant visa is always available to:
Spouses of U.S. citizens
Unmarried, minor children (under age 21) of U.S. citizens
Parents of adult U.S. citizens (age 21 or older)
Widows or widowers of U.S. citizens if the U.S. citizen filed a Form I-130 immigrant petition before his or her death or if the widow(er) files a Form I-360, self-petition within 2 years of the citizen’s death
When Possible, It’s Better to File When the DFA Is Current, Instead of Wait for the AFAD to Become Current
You don’t have to file your I-485 or Immigrant Visa application when the DFA is current. But there are several advantages to getting an early start. Filing under the DFA chart helps to ensure cases are ready to be approved when the AFAD becomes current.
Like AFADs, DFAs can roll back instead of move forward. Still, filing early provides some protection against visa retrogression. This is when a priority date that is current one month will not be current the next month, or the cut-off date will move backwards to an earlier date. Visa retrogression occurs when the visas have been used up or is expected to run out soon in the fiscal year. A new supply of visa numbers become available at the start of the fiscal year, October 1, but the priority dates might still take a while to return to where they were before retrogression.
While the new system does not involve any substantive changes in immigration law, it includes procedural changes that help to ease the backlog and provide some advantages to prospective immigrants.
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Section 212(a)(6)(C) of the Immigration & Nationality Act (INA) permanently bars you from immigrating to the U.S. or being lawfully admitted to the U.S. when you have been found to have (1) committed fraud or willful misrepresentation to gain immigration benefits, or (2) made a false claim to U.S. citizenship for any purpose or benefit under immigration, federal or state law.
