Adjustment of Status and the new Priority Date system?

A foreign national who seek to obtain a green card through a relative or employment will have to file for an Immigrant Visa or file for adjustment of status, if in the United States.

For the Applicants falling into one of the categories which do not have immediate Visa availability, the waiting time until a visa in that specific category becomes available is determined by the system of “Priority Date”.

This waiting time varies from 2 years to more than 13! Fortunately, in September 2015, a reform of the system benefits the foreign nationals who are waiting for a visa to become available in the United States. It allows the filing for the adjustment of status (or green card) before the Immigrant visa becomes available, allowing intending immigrants to obtain a social security number and work in the United States.

The Immigrant Visa Categories

The U.S. Immigration laws has established categories within the employment-based Immigrant Petition (http://mpoudatlaw.com/green-card/employment-immigration/), as well as family-based Immigrant petitions. (http://mpoudatlaw.com/family-immigration/other-relative/).

Immediate Relatives are spouses and children under 21 of a U.S. Citizen and parents of U.S. citizens. For the applicants who fall into those categories, immigrant visas are not limited in numbers and are immediately available (meaning that there is no wait time for a visa or to apply for the adjustment of status/ green card)

For other relatives of a U.S. Citizen, as well as all the relatives of Legal Permanent Residents (i.e. Green Card holder), and most of the categories of employment-based Immigrant Petitions, the number of Immigrant Visas is limited, and the visas are attributed according to the “Priority date” (http://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates).

The Immigrant Visa Process: the Priority Date System

Whether the Foreign intending Immigrant resides in the U.S. or not, his or her qualifying relative or employer will have to file a Petition for Alien Relative or Worker. The date U.S. Citizenship and Immigration Services (USCIS) receives the Petition (“Receipt date”) is what is called the “Priority Date”.

The U.S. Department of State updates every month the Visa Bulletin (https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html), which indicates the date of reception based on which the Service is currently working and granting Immigrant Visas, according to the Immigrant category (http://mpoudatlaw.com/family-immigration/other-relative/) the Applicant fall under.

Also, the country of Citizenship of the intending Immigrant will be taken into account for the determination of the Visa availability date, as the yearly quotas of allocable visas are different if you are citizen of China, India, Mexico, Philippines, or any other country.

For example, you are the spouse of a Legal Permanent Resident (second preference category subclass A –F2A), national of Spain, and the Receipt date on your Petition for Alien Relative is January 30, 2015.

The Visa Bulletin for January 2016 (https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-january-2016.html) states that the intending immigrants in the F2A category who have a priority date (i.e. filing date) prior to August 1st, 2014, are currently receiving Immigrant visas, date upon which the individual can file for adjustment of status if in the United States. Thus, under the old system, the Priority Date in this example was not current, i.e. there is not visa available, and the intending immigrant should have waited until such time as the visa bulletin shows a Priority Date on or before January 30, 2015.

Filing for Adjustment of Status with The New Priority Date System

A new layer of dates allows an Applicant for an Immigrant Visa to file for adjustment of status (i.e. Green Card) before the visa becomes available. There are now two charts, one containing the old priority dates and one called “dates for filing visa-sponsored family applications.” The second chart should be relied on if one intends on applying for adjustment of status.

Thanks to this reform, the intending Immigrant will be able to remain in the US, apply for an Employment Authorization, and in certain cases Travel Authorization (to travel outside the US).

To be eligible, the Priority date of the Applicant must fall on or before the one shown for his or her category in the “dates for filing” chart of the Visa Bulletin.

With the same example as above, the F2A category Citizen from Spain: the Visa Bulletin for January 2016 shows in the second chart that the intending immigrant can apply for adjustment of status even if the Immigrant Visa is not yet available because the “date for filing” in this category is June 15, 2015. As this date is ulterior to the Receipt date on the Applicant’s petition, he or she will be eligible to file for Adjustment of Status.

So even though the intending immigrant applies for adjustment of status, such application will not be approved until the Priority Date and thus an immigrant visa is available in the applicable category.

This procedure can be stressful because of the complexity of the Priority date/Visa bulletin system, which is why we highly recommend that you seek advice from an experienced and Board Certified Immigration Lawyer if you intend on filing for adjustment of status in the United States.

At the Law Office of Maud Poudat, we have extensive experience processing these types of applications and will provide you with our best dedicated service: call today our office to have your case assessed by Attorney Poudat!

NEWS

EB-5 Immigrant Visa program extension signed into law without any changes.

Late December 2015, the EB-5 Visa Program has been renewed without any change through September 30, 2016. The existing program had been extended by Congress on September 30, 2015, until December 11, 2015, and was expected to be reformed. The EB-5 Immigrant Visa Program has been criticized and analysts thought the minimum amount of investment required to be granted a Green Card through this program would be raised. Therefore, this temporary renewal without any change in the investment amounts came as a surprise.

U.S. illegal immigrant population falls below 11 million

The illegal immigrant population in the United States has fallen below 11 million, continuing a nearly decade-long decline according to a study released on January 20th. The total undocumented immigrant population of 10.9 million is the lowest since 2003, says the report from the Center for Migration Studies, a New York think tank.

In the meantime, the Department of Homeland Security (DHS) reported that more than 525,000 people overstayed their visas in fiscal year 2014 and that about 482,000 of them are suspected to be in the country illegally.

But the DHS report examined nearly 45 million non-immigrant visas, meaning that 98.8 percent of the visa-holders left the country on time, the department said in a statement. (© The Washington Post)

https://www.washingtonpost.com/news/federal-eye/wp/2016/01/20/u-s-illegal-immigrant-population-falls-below-11-million-continuing-nearly-decade-long-decline-report-says/?postshare=3941453301500206&tid=ss_mail

New Law Increases H-1B and L-1 Petition Fees

The Consolidated Appropriations Act, 2016 (Public Law 114-113), signed into law by President Obama on December 18, 2015, increases fees for certain H-1B and L-1 petitioners. These petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015.

http://www.uscis.gov/news/alerts/new-law-increases-h-1b-and-l-1-petition-fees

California issues 605,000 driver’s licenses to immigrants

California issued more than a half-million driver’s licenses under a new law granting the identifying documents to immigrants who may be in the country illegally.

The Department of Motor Vehicles announced on January 6, 2016, that 605,000 licenses were issued since the measure took effect last January. That’s out of 830,000 applications.

https://www.washingtonpost.com/national/california-issues-605000-drivers-licenses-to-immigrants/2016/01/06/e8dfd36c-b4dd-11e5-8abc-d09392edc612_story.html

US Program Aims to Get Immigrants Into Court to Track Cases

Immigration and Customs Enforcement (ICE) hired a contractor to help some immigrant families find transportation, housing and low-cost lawyers, hoping that getting them on stable footing will make them more likely to attend court hearings that determine whether they should be allowed to stay in the country or deported. (…)

Those eligible for the program include pregnant women, nursing mothers and immigrants with mental illness, ICE said. When immigrants show up for court, federal authorities can keep track of asylum cases to ensure those who lose return home. (© abcnews.go.com)

http://abcnews.go.com/Politics/wireStory/us-program-aims-immigrants-court-track-cases-36427496

Homeland security secretary defends deportation of Central Americans

The US Department of Homeland Security chief forcefully defended the start of a controversial deportation operation that resulted in the apprehension of 121 adults and children, mostly Central American immigrants who sought legal asylum in the United States but were ordered to leave the country. (© The Guardian)

http://www.theguardian.com/us-news/2016/jan/04/us-authorities-begin-deportations-of-central-american-asylum-seekers

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