Wolfsdorf on the Visa Bulletin: To (Chart) B or Not to (Chart) B?

Bernard P. Wolfsdorf, Robert Blanco and Joseph M. Barnett, Aug. 22, 2016 - " If USCIS does open Chart B to allow for Form I-485 filings, there is still a critical, unanswered question:  Is a child’s age “frozen” under the Child Status Protection Act (“CSPA”) if the child files a Form I-485, Application to Register Permanent Residence or Adjust Status using Chart B – Date for Filing?  USCIS has sought to clarify that a Form I-485 adjustment of status filing under Chart B meets the “sought to acquire” requirement of the CSPA to provide relief when delays in processing visa petitions or applications cause a beneficiary to lose eligibility for classification as a child solely due to reaching 21 years of age.  USCIS indicated its April 15, 2015 Final Policy Memo that the filing of a Form I-485 does meet the “sought to acquire” requirement.  We believe that any other interpretation regarding the use of Chart B would be inconsistent with the November 20, 2014 U.S. Department of Homeland Security (“DHS”) direction to USCIS to work with the U.S. Department of State (“DOS”) to improve the Visa Bulletin system, as part of the Obama Administration’s goal in Modernizing and Streamlining Our Legal Immigration System for the 21st Century to increase predictability in permanent residency system and ensure all allocated visas are used. ... Whether or not USCIS opens Chart B for Form I-485 filings in accordance with President Obama’s visa modernization policy is the critical issue for Chinese nationals waiting in an ever-increasing waiting line. If USCIS does open the Chart B for October and November 2016, there will be a huge benefit for those waiting in the lengthy waiting line, and for some who seek to freeze their derivative children’s age under Chart B, this may be the only chance to save certain EB-5 derivative children from aging out."