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Immigration Law

Godot Has Arrived! Early AOS Fillings Possible Under Oct. 2015 Visa Bulletin - Cyrus D. Mehta

Cyrus D. Mehta on Sept. 9, 2015 - "The U.S. Department of State, starting in October 2015, has issued a visa bulletin with two “application dates” for beneficiaries of family-based and employment based immigrant petitions.  There is an application final action date when the beneficiary will be eligible to receive his/her green card, but there is also a date for filing visa or adjustment  applications which is when the beneficiary will be eligible to file , and if the beneficiary files an adjustment of status application, he or she will  get the benefits thereof such as an Employment Authorization Document (EAD), advance parole and protection under the Child Status Protection Act (CSPA). ... Here are some preliminary observations after brainstorming with some of my esteemed colleagues at the Alliance of Business Immigration Lawyers, www.abil.com, although these are my own views. We must await further guidance from the DOS and USCIS to be sure, but must strongly advocate for these positions:

  • I-485 adjustment applications filed under the new filing priority date will result in the same benefits, which is EAD, Advance Parole, 204(j) portability and CSPA protection.
  • With respect to an “after acquired” spouse, where the principal already has a pending I-485, the spouse can file under the new filing priority date. Ultimately, both the principal and spouse’s I-485 application will get adjudicated when the priority date of the principal become current under the final action priority date. 
  • There is no prohibition to filing a concurrent I-140/485 or I-130/485 under the filing priority date.
  • With respect to a priority date that has been captured from an old EB petition, the same rules apply – you have to see whether the captured priority date coincides with the filing priority date or the final action priority date. 
  • There may be no need to submit a medical with an I-485 filed under the filing priority date, especially when there is a long interval (years) between the filing and the final action priority date.
  • The new policy applies to both Family I-130 and Employment I-140 petitions.
  • With respect to consular processing of cases, the filing priority date would be equally applicable, especially to lock in the age of a child under CSPA.
  • Do we have to rush to file all our I-485s in October 2015 itself? The jury is not yet out whether the dual priority dates system would cause more backlogs and retrogression; although probably not, since the filing priority date, unlike the 2007 July Visa Bulletin, does not signify that visas are immediately available. We have enough time (around the 10th of the month) to wait and watch as to how the dates will progress in November and after that."