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Priority Date Recapture and Retention in Family-Based Immigration

Posted on October 23, 2017 | Comments Off on Priority Date Recapture and Retention in Family-Based Immigration

Family-based immigration can take many years to complete due to slow processing times, huge backlogs, and the limited number of visas available in the family-sponsored, preference categories.

The priority date marks the immigrant visa/green card applicant’s place in the visa queue.  Being able to recapture and retain an old priority date from a previously filed petition in a new petition makes a big difference.

The priority date is when USCIS received the Form I-130, Petition for Alien Relative, from the U.S. citizen or permanent resident petitioner on behalf of the beneficiary.

During the process, certain changes in family circumstances may lead to complications, delays, and even termination of the case. An example is when an unmarried son of a U.S. citizen petitioner marries or when a minor child beneficiary turns age 21 before he immigrates.

Some situations involve automatic conversion from one preference category to another, where the old priority date is kept.  Others require the filing of a new, I-130 immigrant petition, which might not allow priority date recapture and retention.

Family-Sponsored, Preference Categories

There is no limit on the number of immigrant visas/green cards available to immediate relatives.  An immediate relative is the spouse or unmarried, minor child (under age 21) of a U.S. citizen, as well as the parent of an adult U.S. citizen (age 21 or older).

Family-sponsored, preference categories, however, have a maximum number of visas available each fiscal year.  Congress allocates visas to each preference category as follows:

First: (F1) Unmarried Sons and Daughters, age 21 or older, 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 Unmarried Children, under age 21, of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

Priority Date

Immigrant visas or green cards may be issued in family-sponsored, preference categories only when the priority date is current.

A priority date is current if the I-130 petition was filed before the cut-off date listed in the U.S. Department of State’s monthly Visa Bulletin for that category. The Visa Bulletin lists two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).

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 (green card) applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart 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, USCIS also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing I-485 applications.

Automatic Conversion of Preference Categories 

While a family-based immigration case is pending, beneficiaries may move from one category to another, or lose immigrant visa eligibility altogether, due to changes in circumstances.

Federal regulations at 8 CFR 204.2(i) provide for automatic conversion from one family-sponsored, preference category to another, and allow for recapturing and retention of the old priority date in the following situations:

Preference Category Situation in which petition is automatically converted and old priority date is recaptured and retained

 
Immediate Relative/IR

Unmarried, minor child (under age 21) of U.S. citizen

 Child marries: convert from Immediate Relative/IR to Third Preference/F3

Child turns age 21 and is not protected by the Child Status Protection Act (CSPA): convert from Immediate Relative/IR to First Preference/F1
First Preference/F1

Unmarried adult son or daughter (age 21 or older) of U.S. citizen

 Son or daughter marries: convert  from First Preference/F1 to Third Preference/F3
Second Preference A/F2A

Minor child (under age 21) of permanent resident

 Petitioner becomes a naturalized U.S. citizen while child is under age 21: convert from Second Preference A/F2A to Immediate Relative/IR. NOTE: A new I-130 petition must be filed in the Immediate Relatives category if the child was listed only as a derivative beneficiary in an I-130 petition for the petitioner’s spouse, and is not already a principal beneficiary of an-130 filed by petitioner.

Petitioner becomes a naturalized U.S. citizen after child, who is protected by CSPA, turns 21: convert from Second Preference A/F2A to First Preference/F1.  NOTE: If there is more backlog in the F1 category, the DOS and USCIS policies are not clear on whether the beneficiary may opt out of the automatic conversion.  The petitioner may refrain from applying for naturalization to prevent adverse effects on the child.

Child turns 21 and is not protected by CSPA: convert from Second Preference A/F2A to Second Preference B/F2B
Second Preference B/F2B

Unmarried adult son or daughter (age 21 or older), of permanent resident

 Petitioner becomes a naturalized U.S. citizen: convert from Second Preference B/F2B to First Preference/F1. NOTE: If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.
Third Preference/F3

Married son or daughter of U.S. citizen

 Son or daughter divorces: convert from Third Preference/F3 to Immediate Relative/IR (if under age 21) or to First Preference/F1( if 21 or older)

In most cases, no new I-130 petition has to be filed when automatic conversion applies. The petitioner just has to notify USCIS, the National Visa Center or the U.S. Consulate of the conversion.

Priority Date Recapturing or Retention

Generally, an earlier priority date may be recaptured and retained if it is the same petitioner filing for the same beneficiary (including derivative beneficiaries) and the prior I-130 was NOT terminated, denied or revoked, or the prior I-130 approval did not result in an immigrant visa issuance.

A petition termination under INA 203(g) is normally due to failure to take further action within 1 year of a missed, scheduled visa interview, failure to apply for an immigrant visa within 1 year of notice, or failure to overcome a 221(g) visa refusal within 1 year.  A petition revocation under 8 CFR 205 typically stems from withdrawal of the petition, loss of the petitioner’s permanent resident status, or marriage of the beneficiary in the F2A or F2B category.

Beneficiary Gets Married

Marriage of the beneficiary leads to automatic conversion in certain situations. For example, if an unmarried, minor child (under age 21) of a U.S. citizen marries, the petition is automatically converted from the Immediate Relatives to F3 category, but the original priority date is kept.

If an unmarried adult son or daughter (age 21 or older) of a U.S. citizen marries, the petition is automatically converted from the F1 to to F3 category, but the original priority date is kept.

In contrast, if an unmarried child (under age 21) of a permanent resident (F2A category) or  unmarried adult son or daughter (age 21 or older) of a permanent resident (F2B category) marries, the petition is automatically revoked or terminated as a matter of law because there is no category for permanent residents to file for married children. Even if the child/son/daughter divorces, he or she cannot regain the status of a F2A or F2B preference because the I-130 was revoked.  An annulment, however, might serve to reinstate the second preference status.

If the permanent resident parent becomes a U.S. citizen and then files a new petition for the child/son/ daughter in the F3 category, a new priority date will apply and the old priority date cannot be recaptured.

Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by Child Status Protection Act (CSPA)

INA § 203(h)(3) states that if a child “ages out” (turns age 21) and is not covered by age-out protections under the Child Status Protection Act (CSPA), the petition for him or her will be automatically converted to the appropriate preference category.

Eligibility criteria for CSPA include:

  • Beneficiary must have a pending or approved visa petition on or after August 6, 2002
  • Beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
  • Beneficiary must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of an adjustment/green card application or immigrant visa application. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the I-130 petition was approved, whichever is later.

A CSPA formula is used to determine the child’s “CSPA age.” USCIS will take the child’s age at the time an immigrant visa number first became available and deduct the time the I-130 petition was pending from the child’s age.

The formula for calculating CSPA age is: Age at Time of Visa Availability MINUS Pending Time For I-130 Petition

Age at Time of Visa Availability is the later of these two dates:

1. The date the petition was approved; OR
2. The first day of the month of the Department of State Visa Bulletin that indicates that a visa is available in the Final Action Dates chart.

Pending Time for I-130 Petition is:

The number of days between the filing date and the approval date for the petition.

If the CSPA age is younger than 21 years of age, the beneficiary keeps the same preference category even if he turned age 21 – provided he seeks to acquire permanent residence within one year of  when an immigrant visa or green card becomes available.

The “sought to acquire” requirement may be met by properly filing a Form I-485, Application to Register Permanent Residence or Adjust Status, a Form DS-260, Immigrant Visa application, or an I-824 Application for Action on an Approved Application or Petition. In some cases, the person may argue “substantial steps” had been taken within 1 year, such as hiring an attorney to prepare the application, or filing an application but getting a rejection notice. There is no exception to this requirement. The real question is whether concrete steps or substantial steps were taken within the 1 year deadline.

When the minor child of a U.S. citizen turns 21 and is not protected by CSPA, he or she is converted from the Immediate Relative to F1 category.

When the minor child of a permanent resident turns 21 and is not protected by CSPA, he or she is converted from the F2A to F2B category.

Derivative Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by CSPA

A derivative beneficiary includes a minor child (under age 21) of a principal beneficiary of an I-130 petition. When the derivative child turns 21 and “ages out,” the child is no longer eligible to immigrate as a derivative beneficiary of the I-130 petition for her parents. Therefore, a new petition must be filed for the former derivative child as the principal beneficiary.

INA § 203(h)(3), regarding the retention of priority dates, states, “If the age of an alien is determined [by the CSPA calculator] to be 21 years of age or older for the purposes of [retaining status as a derivative beneficiary in the preference categories], the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

In a 2009 case, Matter of Wang, the BIA found that while the language in section 203(h)(3) is ambiguous, Congress intended for priority dates to be retained only when the same petitioner filed a second petition for the same beneficiary. The BIA held that retention of the old priority date was “limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident.” The BIA found § 203(h)(3) did not apply to derivative beneficiaries in other categories.

Matter of Wang interpreted INA § 203(h)(3) narrowly, holding that the priority date may only be retained if the second preference petition is filed by the same petitioner. The case involved a beneficiary from China whose LPR parent filed a petition for him in the F2B category. He had a petition previously filed on his behalf by his brother under the F4 category. He sought to recapture the old priority date under the F4 category. But the BIA held he could not recapture the original priority date because the petition under the F2B category required a different petitioner and sponsor than the original petition under the F4 category.

In its June 2014 decision in Scialabba v. Cuellar de Osorio, the U.S. Supreme Court agreed with the BIA’s holding. The Supreme Court read section 203(h)(3) to allow only derivative children of beneficiaries of F2A petitions (for spouses and children of permanent residents) to retain the priority date of their parent’s original petition.

The Supreme Court’s decision supersedes earlier appellate court holdings, such as Khalid v. Holder, in which the Fifth Circuit Court of Appeals rejected Matter of Wang and held that the CSPA priority date retention applies to all petitions where derivative beneficiaries may “age out,” not just to second-preference petitions.

To recapture the priority date, the new petition must be filed by the same, original petitioner. The priority date cannot be recaptured in a situation like in Matter of Wang, where the original petitioner was a U.S. citizen brother and the second petitioner was a permanent resident father. The rule set forth in Matter of Wang, and upheld by the U.S. Supreme Court in Scialabba, limits situations in which a priority date may be recaptured in a new I-130 filing.

Derivative beneficiaries under any other preference category besides F2A may not retain the priority date of the petition where their parents were principal beneficiaries. These other derivative beneficiaries include the children of unmarried sons and daughters of U.S. citizens (First Preference/F1); the children of unmarried sons and daughters of permanent residents (Second Preference B/F2B); the children of married sons and daughters of U.S. citizens (Third Preference/F3); and the children of siblings of U.S. citizens (Fourth Preference category, F4).

Scenario 1: Maria is the principal beneficiary of an I-130 petition filed by her permanent resident spouse, Thomas, in the F2A (spouse of permanent resident) category. Maria’s daughter, Ana, is included in the petition as a derivative beneficiary. But Ana ages out (turns age 21) and may no longer follow to join the principal beneficiary.

The original petitioner, Thomas, then files an I-130 petition for Ana in the F2B (adult, unmarried daughter of permanent resident) category. Ana may recapture the old priority date because she was the derivative of an F2A beneficiary.

Scenario 2: Maria is the principal beneficiary of an I-130 petition field by her U.S. citizen brother, Joaquin, in the F4 (sister of adult U.S. citizen) category. Maria’s daughter, Ana, is included in the petition as  a derivative beneficiary. But Ana ages out (turns age 21) and can no longer follow to join the principal beneficiary.

The original petitioner, Joaquin, may not file an I-130 petition for Ana because there is no category for nieces of a U.S. citizen. Ana’s now permanent resident mother, Maria, then files an I-130 petition for her in the F2B (adult, unmarried daughter of permanent resident) category. Ana may not recapture the old priority date because she was the derivative of an F4 beneficiary.

Ana’s immigration process will be delayed more in Scenario 2 because, unlike in Scenario 1, she cannot retain the priority date of the parent’s original I-130 petition. Because she has aged out, she needs to have a new I-130 petition with a new priority date filed for her.

Petitioner Naturalizes

When a permanent resident petitioner becomes a naturalized U.S. citizen, he may request an upgrade of his I-130 petition for his spouse from the F2A to Immediate Relatives category. But if he did not file an I-130 petition for his minor child (under age 21), and simply listed him as an F2A derivative beneficiary on the I-130 petition for his spouse, he will need to file a new I-130 petition for the child in the Immediate Relatives category. The old priority date may be recaptured to help the child immigrate earlier with the spouse.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for a minor child who turns 21, but is protected by CSPA, will convert from the F2A to F1 category. If there is more backlog in the F1 category, the beneficiary may NOT be able to opt out of the automatic conversion.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for an unmarried son or daughter (age 21 or older) will convert from F2B to F1 category. If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.

Conclusion

The priority date (i.e. the date the I-130 petition was filed with USCIS) determines when you may immigrate to the United States or adjust to permanent resident status.

Determining whether a beneficiary or derivative beneficiary is protected by CSPA after aging out (turning 21) is complicated. Seeking to recapture and retain an earlier priority date to reduce immigration delays can be tricky.

Consult an experienced immigration attorney to fully evaluate your situation, including whether CSPA applies or whether an old priority date may be recaptured and retained.

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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.

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Photo by: Kevin Haggerty

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Immigrant Visa Process: Delays and Setbacks

Posted on May 28, 2016 | Comments Off on Immigrant Visa Process: Delays and Setbacks

delaysIf you seek permanent residence through an immigrant petition filed by a family member or employer and you are outside the U.S. (or are in the U.S. but cannot file for adjustment of status), you must obtain your immigrant visa at the U.S. Consulate.

Known as “consular processing,” this pathway to a green card often involves delays and setbacks at all stages of the application process.

#1: WAITING FOR PETITION APPROVAL

Family-Based Immigration

In family-based immigration, only relatives who fall in specific family-based categories qualify for an immigrant visa. The first step is for a U.S. citizen or permanent resident relative to file a Form I-130 petition for you to immigrate to the U.S.

Employment-Based Immigration

In employment-based immigration, only persons who fall in designated employment-based categories qualify for an immigrant visa. A U.S. employer usually has to file a Form I-140, Immigrant Petition for Alien Worker, for you to immigrate to the U.S.  In the employment-based fourth preference(EB-4) immigrant category, the U.S. employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

In some cases, the I-140 petition may be filed by the foreign national beneficiary, such as in EB-1 Extraordinary Ability and EB-2 National Interest Waiver petitions.

In the employment-based fifth preference (EB-5) immigrant category, the Form I-526, Immigrant Petition by Alien Entrepreneur, is filed by the foreign national immigrant investor.

Delays and Setbacks

Long Processing Time

Due to case volume and other factors, USCIS’ processing times for immigrant petitions vary greatly (e.g. 4 to 12 months). If there is a backlog in your visa category, USCIS may also put the petition on the backburner.

During processing, USCIS may issue a Request for Evidence (RFE) when there is insufficient information or documents to approve the petition. In some cases, USCIS may issue a Notice of Intent to Deny Petition (NOID) when it finds the beneficiary is not eligible for the benefit sought. USCIS will not approve the petition unless an adequate and timely response is submitted.

The date USCIS receives the petition, not the date USCIS approves the petition, affects when an immigrant visa becomes available in the preference categories. Nevertheless, the petition must first be approved before you may apply for an immigrant visa.

Challenges with Proving Eligibility in Family-Based Immigration

Documentary evidence

In family-based immigration, petitioners must show they have the required relationship with the beneficiary, besides presenting documentary proof of their U.S. citizenship or permanent residence.

Proving a parent-child relationship can be a problem when there is no birth certificate or when the birth certificate was registered late.

Proving a legal, bona fide marriage in spousal petitions carries challenges. The petitioner must present the requisite marriage certificate and divorce decrees (for any prior marriages), showing the marriage was legal in the place where it occurred.

Furthermore, the petitioner must provide documentary evidence establishing the marriage was entered into in good faith, for the purpose of creating a life together as spouses, and not for immigration purposes. When the petitioner lives in the U.S. while the beneficiary lives overseas, there is limited documents to present. For example, there is no joint lease, joint bills, joint tax returns or other documents that married couples who live together would normally have.

Adam Walsh Act

The Adam Walsh Child Protection and Safety Act, which was signed into law in 2006,  prohibits U.S. citizens and permanent residents who were convicted of a “specified offense” against a minor from petitioning for family members, particularly a spouse or a child. USCIS may not approve these I-130 petitions unless it finds the petitioner poses “no risk” to the family member.

Significant delays, notices of intent to deny, and decisions denying the immigrant petition often results when the Adam Walsh Act applies.

Challenges with Proving Eligibility in Employment-Based Immigration

Documentary evidence

In employment-based immigration, the petition must contain extensive, reliable documentary evidence of the beneficiary’s qualifications, including the requisite degree, academic records, and support letters from current and past employers. Those who are filing for EB-1 and EB-2 (Exceptional Ability and National Interest Waiver) classification must also provide specific evidence showing they meet the criteria.

Immigrant petitions that require job offers must also include evidence that the U.S. employer has the ability to pay the proffered wage. Examples are copies of annual reports, federal tax returns, or audited financial statements.

Labor Certification in EB-2 and EB-3 categories

Immigration petitions involving professionals with Advanced Degrees or Exceptional Abilities (EB-2, excluding NIWs) and professionals with a bachelor’s degree, skilled workers, and unskilled workers (EB-3) must be accompanied by a PERM Labor Certification issued by the Department of Labor.

Prior to filing the I-140 petition, the U.S. employer must complete a process to recruit U.S. workers and then file for the labor certification. The DOL must certify to the USCIS there are insufficient U.S. workers able, willing, qualified and available to accept the job in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Forwarding of Case from USCIS to NVC

Upon completing review of the immigrant petition, USCIS issues a decision. If the petition is denied, the notice will include the reasons for denying the petition and explain any rights to appeal the decision. If the petition is approved and you are applying for an immigrant visa abroad, USCIS will forward the approved petition to the U.S. Department of State’s National Visa Center (NVC).

#2: WAITING FOR INSTRUCTIONS FROM NATIONAL VISA CENTER (NVC)

Even with an approved immigrant petition, you may not start applying for an immigrant visa until one is available or is about to become available. The only category in which immigrant visas are always available is the immediate relatives (family-based) category. Immediate relatives include:

  • The spouse of a U.S. citizen
  • Minor child (under age 21) of a U.S. citizen
  • Parent of an adult U.S. citizen (age 21 or older)
  • Step-parent of an adult U.S. citizen (if the step-parent, step-child relationship began before the citizen’s 18th birthday)
  • Step-child of a U.S. citizen (if the step-parent, step-child relationship began before the step-child’s 18th birthday)
  • The spouse of a deceased U.S. citizen (if the spouse was married to the deceased U.S. citizen for at least two years and the application for permanent residence was filed within two years of the death of the U.S. citizen)

Those in the family-sponsored preference and employment-based categories must wait for their priority date to become current.

The NVC is responsible for processing immigrant visa applications before they are forwarded to the U.S. Consulate. It will send instructions to the petitioner and/or beneficiary when an immigrant visa is about to become available.

Delays and Setbacks

Backlog in the Preference Categories

The priority date marks the applicant’s place in the visa queue. In family-sponsored, preference 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, the priority date is the date the Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the I-140 petition (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).

In October 2015, the 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).

AFADs are the cut-off dates that determine when an immigrant visa becomes available. If your 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, you may receive an immigrant visa following completion of the application process.

DFAs are the cut-off dates that determine when the applicant should receive instructions from the NVC to submit documents for consular processing. When your priority date is earlier than the cut-off date in the DFA chart, you may submit required documents to the NVC, following receipt of instructions to do so.

When demand exceeds supply of visas for a given year in a given category or country, a visa backlog forms. It usually takes several years for a visa to become available.  In the F4 (brother or sister of adult U.S. citizen) category, for example, the wait for a visa to become available is usually 10+ years.

Challenges with Submitting Required Forms and Documents

At the appropriate time, the NVC will send instructions to the visa applicant to pay the appropriate fees: Form DS-260, online immigrant visa application fee, and Form I-864, Affidavit of Support fee (in all family-based immigration cases and in certain employment-based immigration cases).

After the fees are paid, the NVC will request the visa applicant to submit the required documents, including DS-260 application form and civil documents (e.g. birth certificate, police certificate, and photocopy of valid passport biographic data page) .

Visa applicants must also submit a Form I-864 and supporting financial documents proving they will not become a public charge to the U.S. government (in all family-based immigration cases, and in certain employment-based immigration cases where a U.S. citizen or permanent resident relative filed the Form I-140 petition or where such a relative has a significant ownership interest in the entity that filed the petition).

The NVC will issue a Request for Evidence if the visa applicant fails to submit all the required documents, such as his birth certificate, police certificate, and Form I-864 with supporting financial evidence.

Forwarding of Case from NVC to U.S. Consulate

The NVC will forward the immigrant visa  file to the U.S. Consulate only when it is satisfied that all required forms and documents have been submitted. The NVC may termination registration (close case) when applicants have not responded to its instructions within one year.

#3. WAITING FOR IMMIGRANT VISA INTERVIEW

After your case becomes qualified for an interview, NVC will work with the appropriate U.S. Consulate to schedule an appointment for you.

Visa interviews are normally scheduled one month in advance.  The U.S. Consulates inform the NVC of the dates they are holding interviews, and NVC fills these appointments on a first-in, first-out basis. Most interviews are scheduled within 60 days of NVC’s receipt of all required documents.

Delays and Setbacks

Completing Medical Examination

An immigrant visa cannot be issued if you do not complete the medical examination, along with required vaccinations, by an authorized panel physician in your country.

Prior to the interview, you should schedule and complete the required medical examination. Completing the medical examination after the visa interview will delay your case until the U.S. Consulate receives the results.

Completing the medical examination too soon (well before the interview) can cause delays as well. The medical report is valid for one year from the date of the medical examination. The examination must be redone if the report has expired or will expire before you enter the United States.

Failing to Appear at Visa Interview or Requesting Rescheduling

Although you usually have a month’s notice, you have no control over when the visa interview is scheduled. Failure to appear could lead to significant delays or a termination of your visa application. Requests for interview rescheduling will delay processing by several months.

#4: WAITING FOR IMMIGRANT VISA GRANT

At the visa interview, you will be expected to submit original documents or certified copies, such as your birth certificate and marriage certificate (if applicable). The consular officer will verify the authenticity of the documents and question you about your eligibility for the visa.

The U.S. Consulates have tremendous power in deciding whether to grant an immigrant visa. The doctrine of consular non-reviewability prohibits judicial review of visa denials. There is no formal appeal process to challenge a visa denial.

Delays and Setbacks

Administrative Processing

Section 221(g) of the Immigration & Nationality Act (INA) allows the U.S. Consulate to conduct further administrative processing before it issues the visa or determines whether you are eligible for the visa.

Administrative processing involves a wide range of activities. Examples are request for a Security Advisory Opinion (SAO) from the Department of State on whether the applicant poses a risk to the United States; more in-depth investigation to check for fraud; and request for review by a supervisor at the U.S. Consulate.

There is generally nothing you can do to speed up administrative processing and you are not told why it is necessary. While the delay is frustrating, cases that are otherwise approvable are rarely sent for administrative processing.

Incomplete Application

Under section 221(g) of the INA, a consular officer may refuse to grant the visa due to missing information on the application forms or missing documents. For example, when the visa application is based on a spousal petition, the U.S. Consulate may request additional documentary evidence of the bona fide nature of the marriage. In some cases, it may return the petition to USCIS for revocation if it determines the petition should not have been approved.

Inadmissibility Finding

Section 212(a) of the INA lists various grounds under which a visa applicant is inadmissible to the U.S. (i.e. barred from entering the U.S.) The most common include fraud or willful misrepresentation of material facts to gain immigration benefits; crime-related problems; unlawful presence in the U.S. lasting more than 180 days; public charge issues; and illegal re-entries into the U.S.

Waivers of inadmissibility are available for some grounds and not for others. When a waiver is available, the visa applicant must also meet the requirements to apply for it.

If the U.S. Consulate finds you are inadmissible to the U.S., it will not grant the immigrant visa unless you (a) successfully challenge the finding by filing a motion to reconsider with the Consulate or (b) obtain a waiver of inadmissibility by filing a Form I-601 and/or Form I-212 with the appropriate agency.

* * *

If all goes well, the U.S. Consulate will stamp an immigrant visa in your passport, which is normally valid for six months. It will also give you a sealed Visa Packet containing documents you must present to U.S. Customs and Border Protection at a port-of-entry (e.g. airport) upon your arrival in the United States. Do not open the sealed packet.

The CBP will verify whether  you are admissible to the U.S. before it admits you to the U.S. as a permanent resident. The CBP’s endorsement of the visa serves as temporary evidence of your immigrant status. You will be mailed your green card after you pay the USCIS Immigrant Fee.

Applying for an immigrant visa often involves delays and setbacks in all stages of the process. Work with an experienced immigration attorney to maximize your chances of obtaining an approval in the fastest time possible.

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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.

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Changes to the Visa Bulletin: Understanding the Two Filing Charts

Posted on November 25, 2015 | Comments Off on Changes to the Visa Bulletin: Understanding the Two Filing Charts

queue

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.

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Priority Date: Current, Retrogressed, or Doesn’t Matter?

Posted on November 18, 2014 | Comments Off on Priority Date: Current, Retrogressed, or Doesn’t Matter?

Immigrating to the United States can be a long, slow process that lasts several years (decades, in some cases).

The other day, a U.S. citizen called to ask me whether he could file an immigrant petition for his adult brother, who is 52 years old. I said yes, but based on current processing time, it could be well over 12 years before his brother gets an immigrant visa to enter the U.S. as a permanent resident.

Why would it take so long? 

A big reason is that Congress limits the number of persons who may immigrate to the U.S. each year. The time you must wait for an immigrant visa depends on the annual limit in your visa category, the number of applicants, and your priority date.

The one visa category that does not have an annual limit are immediate relatives of U.S. citizens.

What is my priority date?

Your priority date is the date you began your green card process.

In family-based immigration, it’s the date that U.S. Citizenship & Immigration Services (USCIS) received the Form I-130, Petition for Alien Relative.

In employment-based categories, it’s the date that the U.S. Department of Labor (DOL) received the application for alien labor certification or the date that USCIS received the Form I-140, Immigrant Petition for Alien Worker (if no alien labor certification is required).

When may I file for my green card or my immigrant visa? 

Immediate Relatives

There is no annual limit or waiting period in the immediate relatives category. Immigrant visas are always available to:

  • The spouse or minor child of a U.S. citizen.
  • Parent of a U.S. citizen who is age 21 or over.
  • Step-parent or step-child of a U.S. citizen (if the step-parent, step-child relationship began before the child’s 18th birthday).
  • The spouse of a deceased U.S. citizen (if the spouse was married to the deceased U.S. citizen for at least two years and the application for permanent residence was filed within two years of the death of the U.S. citizen).

But if you’re in a preference category with annual limits, your priority date determines when you may apply for a green card or an immigrant visa. These categories are as follows:

Family-Sponsored Preferences 

First: (F1) Unmarried Sons and Daughters of 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, and any unused first preference numbers:

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

B. (F2B) Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

Employment-Based Preferences

First: (EB1) Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: (EB2) Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: (EB3) Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Schedule A Workers: Employment First, Second, and Third preference Schedule A applicants are entitled to up to 50,000 “recaptured” numbers.

Fourth: (EB4) Certain Special Immigrants, such as Religious Workers: 7.1% of the worldwide level.

Fifth: (EB5) Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers.

Visa Bulletin

The U.S. Department of State (DOS) publishes a monthly Visa Bulletin to show the availability of immigrant visa numbers in each family category and employment category. Each category with annual limits usually has a cut-off date.

There are also limits on the number of immigrant visas that can be granted each year to persons from any one country. These limits are not based on citizenship, but on the “country of chargeability,” which is usually the country where you were born. You might be able to claim a different country, such as the country where your spouse was born.

If the Visa Bulletin  shows “C” for a category and country, this means the visa numbers are current and there is no waiting period.  If the demand for visas exceeds the supply, the Visa Bulletin shows a cut-off date.

Is your priority date current?

Your priority date must be current for you to file your Form I-485, Application to Register Permanent Residence or to Adjust Status (if you are in the U.S. and you are eligible for a green card), or apply for an immigrant visa at your U.S. Consulate (if you are outside of the U.S.)

If visa numbers are current or your priority date is earlier than the cut-off date, you may file your Form I-485 or immigrant visa application (assuming USCIS approved the immigrant petition). You may be scheduled for an interview and get your green card or immigrant visa only when your priority date is current.

File your Form I-485 application or apply for consular processing as soon as your priority date is current. If you are in the U.S. and qualify for adjustment of status, you submit the I-485 to USCIS, which will send you a green card interview notice.  If you are living overseas, the National Visa Center (NVC) will issue instructions to begin consular processing.

Has your priority date retrogressed? 

The priority dates may retrogress (move backward). So, even if your priority date is current this month, it could move backward the next month.

If the priority date retrogresses after you file your Form I-485 application or after you begin consular processing, your case cannot be approved until the priority date becomes current again.

USCIS may issue a request for evidence (RFE), a notice of intent to deny (NOID), or a denial during this waiting period. Or USCIS will place your case on hold and approve it only after an immigrant visa becomes available again.

How do I know when an immigrant visa number is available to me?’

If you are in the family-sponsored preference or employment-based preference category, you must track the Visa Bulletin to know whether your priority date is current.

The Visa Bulletin looks backward, not forward. For example, in the November 2014 Visa Bulletin, the cut-off date is “08JUL94” for Mexican-born applicants in the family-sponsored, F-1 category. This means the I-130 petition had to be filed 20 years ago (on or before July 8, 1994) for an immigrant visa to now be available.

That’s a LONG WAIT! And as demand continues to exceed supply, the waiting period could be much longer if the petition is filed today.

The monthly Visa Bulletin is available on the DOS website. You may also call the DOS at (202) 663-1541 for a 24-hour recording that gives the priority dates that are currently being processed.

If you’re an immediate relative of a U.S. citizen, you don’t need to track the Visa Bulletin. The priority date doesn’t matter because there is no annual limit in your category.

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.

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