Filing Form I-485 Sooner?

One Step Closer to "Modernization" Synopsis: U.S. Citizenship and Immigration Services (USCIS) and the U.S. State Department (State) just announced today a new way to gauge immigrant visa demand better by revising the State's monthly Visa Bulletin. Now, there will be two charts: one that indicates "Application for Final Action Dates" and another that reports "Dates for Filing Visa Applications." The former is the traditional report of visa availability for cases filed with certain priority dates. The latter is a newly created mechanism whereby individuals with certain priority dates can now file Form I-485. This latter mechanism is to put State on notice as to what is coming down the pipeline from USCIS as far as immigrant visa demands. Practically, this means that certain individuals may file the Form I-485 sooner than expected. It is Clark Lau LLC's understanding that this also means the corresponding benefits of filing the Form I-485 should follow: employment authorization via Form I-765 for applicants and dependents, travel permission via Form I-131, flexibility in changing to jobs of the same or similar occupation, and preservation of the right of children to obtain permanent residency as dependents of their parents by "freezing" their age at the time of filing Forms I-485. Full Report: Since November last year, the Executive Branch has been taking baby steps towards meeting its goals of immigration modernization. Some of these actions have not been without their legal and political challenges. The White House published a report back in July giving itself a report card for what it has accomplished to date and what it sees happening ahead. Today, we move one step closer. Whether someone is seeking legal permanent residency, i.e., a "green card," through family-sponsorship or employment-sponsorship, one must obtain an immigrant visa number to complete the multi-step process. Each year there is a limited number of immigrant visas available, and of these, a certain number is allocated for each family-based and each employment-based category. Additionally, individuals born of one country cannot use up more than 7% of the total number. For this reason, and due to high demands, applicants under certain visa categories and applicants born in certain countries must wait many years before an immigrant visa number is available to them to complete the permanent residency process. Today, both USCIS and State announced a new way to help them better gauge the demand on visa numbers. Demand on numbers comes from worldwide consulates and from USCIS when it processes adjustment of status applications (Forms I-485). Traditionally, State tries to gauge the demand each month for immigrant visa numbers and tries to release enough numbers to meet the demand throughout the fiscal year, while also trying to make sure that all the numbers are used up and not "wasted" each year. That is, State tries not to use up all of the numbers during the first month of the fiscal year. This means making some applicants wait. At the same time, State tries not to hold back too many of the numbers such that the full amount are not allocated by the end of the fiscal year. It is a sensitive balance. In conversations with Charles Oppenheim, who is responsible for deciding on the allocation of numbers each month, Mr. Oppenheim told Vince back in May that much of the problem lies in not knowing what the actual visa number demands are. While State communicates with Mr. Oppenheim as to how many applications it has in its pipeline, USCIS does not indicate its need until an application is fully processed and ready for approval. Under these circumstances, Mr. Oppenheim is unaware of what is coming down the pipeline from USCIS. He can only guess. The new system announced by State and USCIS will change this. By having USCIS accept adjustment of status applications earlier, Mr. Oppenheim will have more advanced notice of the demand from USCIS prior to USCIS adjudicating and taking "final action" on the applications. An applicant's place in line is determined by his or her "priority date," that is, the filing date of a family petition (Form I-130), an employment-sponsored labor certification application, or an employment petition (Form I-140) if no labor certification is needed. Visa numbers are allocated each month by Mr. Oppenheim based on priority dates. These are announced via State's Visa Bulletin. To date, applicants would have to monitor the Visa Bulletin, which is released monthly, to determine whether a visa number is available to him or to her based on his or her priority date. If a number is available, and the individual is in the United States in legal status, then the individual would be able to file with USCIS Form I-485, the last step in the permanent residency process. (If the individual is outside of the United States, then the individual actually is notified by State prior to a number is available in anticipation of the visa number availability.) As of today, USCIS and State announced a new system whereby the Visa Bulletin will report a chart indicating "Application for Final Action Dates" and "Dates for Filing Visa Applications." The former is the traditional report of visa availability for cases filed with certain priority dates. Individuals must still use this chart to determine whether immigrant visa numbers are available to them. The latter is a newly created mechanism whereby individuals with certain priority dates can now file Form I-485 even when visa numbers are not yet available. This latter mechanism is to put State on notice as to what is coming down the pipeline from USCIS as far as immigrant visa demands. The goal is that this will help Mr. Oppenheim and his team allocate visa numbers better throughout the year. Practically, this means that certain individuals may file the Form I-485 sooner than expected starting October 1, 2015. It is Clark Lau LLC's understanding that this also means that the corresponding benefits of filing Form I-485 should follow. Applicants and dependents should be able to file Forms I-765 to obtain employment authorization and Forms I-131 for travel permission. This should also mean that individuals in the employment-based context who have approved Forms I-140 and who have Forms I-485 which have been pending for more than 180 days may now switch to jobs that are of the same or similar occupation. This should also mean that those filing Forms I-485 could "freeze" their age and preserve their right as children to obtain permanent residency as dependents of their parents. Please note that all of this information was just announced today and Clark Lau LLC is closely monitoring the finer details and implications as the different government agencies make their late breaking announcements. The above information has also been provided to you for informational purposes only. The facts of each situation are unique and we encourage you not to act on the above without first consulting with your Clark Lau LLC attorney.