A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

Contact: 732-632-9888, http://www.1visa1.com/

Saturday, January 4, 2020

Retrogression Will Delay Post-Interview Adjustment Cases

Applying for a U.S. green card through adjustment of status (AOS) is generally a long and complicated process. After submitting the I-485 adjustment application, applicants must wait to be notified by USCIS before taking what is likely the last step of their green card application journey -- the interview. One may believe that if the interview goes well, their I-485 will be approved and they will get their green card right away. This may not be the case.

Visa bulletin cut-off dates change every month. What happens if your visa category's cut-off date retrogresses by the time you have your interview? USCIS has published a confirmation of their policy in such a situation. According to USCIS, if an applicant's priority date no longer meets the visa bulletin cut-off date because of retrogression, USCIS will pause processing and resume again when the applicant's priority date becomes current.

In addition, some I-485 applicants may receive interview notices even though their priority dates are not yet current.  This is because USCIS is trying to maximize usage of resources and interview time slots. In this situation, USCIS will review all available documents, question the applicant, and determine his or her eligibility at the adjustment interview as usual.

If an officer determines the adjustment of status application is approvable at the end of the interview, but a visa number is not yet available for the applicant's category, the officer will provide the applicant with notice that the application is being continued. USCIS Field Offices will forward these cases to the National Benefits Center (NBC) or the Texas Service Center (TSC) instead of holding them. Employment-based applications received before March 6, 2017 are sent to TSC. Cases received on or after March 6, 2017 are sent to NBC. Family-based cases are forwarded to NBC.

USCIS will not notify AOS applicants who have completed their interview when a visa number is available. Applicants must use the visa bulletin to monitor the dates by themselves. The Department of State (DOS) usually releases the following month's visa bulletin by the middle of each month.

USCIS will resume processing of the I-485 application when the applicant's priority date becomes current. Due to the high volume of applications, it may take months for USCIS to finalize the case. If the applicant remains eligible for permanent resident status and there are no outstanding issues, USCIS should approve the adjustment application and send the green card to the applicant by postal services. 

If your application has been transferred to a service center due to unavailability of visa numbers, you have to wait for at least 120 days after your priority date becoming current before making a status inquiry. If you have any issues regarding the AOS application or AOS interview, it is best to consult with a qualified immigration attorney.


Sunday, December 22, 2019

USCIS Amends Policy on TPS Parole Status

USCIS is amending its Policy Manual regarding Temporary Protected Status (TPS) on 12/20/2019.  The agency confirms that the U.S. may not remove TPS beneficiaries from the U.S. by law.  USCIS also issues advance parole travel document to them after approving their requests to travel abroad.  

However, USCIS takes the position that, although TPS beneficiaries may travel and return using parole documents, they resume their pre-departure status after their return to the U.S.  For example, if a person was subject to an order of removal from the U.S. previously, the person's departure and return based on TPS parole is not an execution of the removal order. In this situation, the person will remain subject to the order of removal. 

The new policy also affects TPS beneficiaries' ability to apply for adjustment of status.  To be eligible for adjustment of status, an applicant must establish that he/she has been inspected and admitted or paroled by an immigrant officer.  Some courts have held that TPS beneficiaries are considered to have been inspected and/or paroled, especially after they have returned using advance parole documents.  Under this new policy, USCIS would not approve TPS  parolee's adjustment applicant unless he/she was previously inspected and admitted or paroled into the United States.  

Friday, December 20, 2019

January 2020 Visa Bulletin: Family and EB-1 Advance


There are moderate movements in the January 2020 Visa Bulletin. 

EB-1 China advances 7 days to 05/22/2017. EB-1 India stays the same. All other countries advances 2.5 months under the EB-1 category. 

EB-2 and EB-3 China move forward for 9 days and 1 month respectively. Chinese applicants can consider downgrading since EB-3 is still faster than EB-2.

EB-5 India advances 4 months to 05/01/2018 while EB-2 India moves forward for only 3 days.

Family F2A remains current. F1 other countries, China, and India advance 2 months to 07/15/2013. F1 Philippines advances 2.5 months. F2B and F3 Philippines advance 2 months and 4 months respectively.


AD: Dates for Final Action (Green Card Approval)              FD: Dates for Filing Applications Only

      Family
Other Countries
      China
India
Mexico
Philippines
F1
AD
07/15/2013
07/15/2013
07/15/2013
08/08/1997
01/15/2009
FD
03/15/2014
03/15/2014
03/15/2014
11/15/1999
09/15/2009
F2A
AD
      C
      C
      C
      C
      C
FD
11/01/2019
11/01/2019
11/01/2019
11/01/2019
11/01/2019
F2B
AD
08/08/2014
08/08/2014
08/08/2014
08/22/1998
02/01/2009
FD
04/08/2015
04/08/2015
04/08/2015
04/22/1999
10/01/2009
F3
AD
11/15/2007
11/15/2007
11/15/2007
03/01/1996
01/01/1999
FD
07/15/2008
07/15/2008
07/15/2008
07/15/2000
09/01/1999
F4
AD
02/01/2007
02/01/2007
11/08/2004
01/08/1998
03/01/1999
FD
07/22/2007
07/22/2007
07/08/2005
01/01/1999
11/01/1999

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)
4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)
  
Employment
Other Countries
China
El Salvador
Guatemala
Honduras
India
Mexico
Philippines

Vietnam
EB1
AD
    10/01/2018
   
05/22/2017

10/01/2018
  01/01/2015

10/01/2018

10/01/2018

10/01/2018
FD
C
10/01/2017
C
03/15/2017
C
C
C
EB2
AD

C

07/01/2015
C
  05/18/2009

C

C
        
C
FD
C
08/01/2016
C
07/01/2009
C
C
C
EB3
AD
C
12/01/2015
C
01/01/2009
C
03/15/2018
C
FD
01/01/2019
03/01/2017
01/01/2019
02/01/2010
01/01/2019
01/01/2019
01/01/2019
Other Workers
  AD
C
04/01/2008
C
01/01/2009
C
03/15/2018
C
FD
01/01/2019
08/01/2008
01/01/2019
02/01/2010
01/01/2019
01/01/2019
01/01/2019
EB4
AD
C
C
07/01/2016
C
08/08/2017
C
C
FD
C
C
08/15/2016
C
C
C
C
EB5
AD
C
11/22/2014
C
05/01/2018
C
C
12/08/2016
FD
C
05/15/2015
C
C
C
C
C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding 
prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)    
5th: Employment Creation (Investors)

Notes:  The following two categories (not listed above) have become "unavailable"  for all countries in January 2020:
- Certain Religious Workers
- 5th Regional Center (I5 and R5)


What happens if the Final Action Date is "current" or later than the Filing Date? 
If this happens in a particular immigrant visa category, applicants in that visa category may file using the Final Action Dates chart during that month.

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart. However, the category is “current” on the Final Action Dates chart. This means that applicants in the F2A category may file using the Final Action Dates chart for January 2020.

For all the other family-based preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for January 2020.

For Employment-Based Preference Filings:
In the EB-3 and Other Workers “All Chargeability Areas Except Those Listed” categories, there is a cutoff date on the Dates for Filing chart. However, the categories are “current” on the Final Action Dates chart. This means that applicants in the EB-3 and Other Workers from all other chargeability areas may file using the Final Action Dates chart for January 2020.

For all other employment-based preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for January 2020.











Seven Additional Bars to Asylum Proposed

USCIS and EOIR jointly proposed a new rule to add seven mandatory bars to asylum eligibility on December 19, 2019. (84 FR 69640, 12/19/19)  Under this rule, an asylum seeker will be barred from obtaining political asylum if he / she is convicted of:

(1) Any felony under federal or state law;

(2) Alien smuggling or harboring [8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2)] ;

(3) Illegal reentry to the U.S. after removal under 8 U.S.C. § 1326;

(4) A federal, state, tribal, or local crime involving criminal street gang activity;

(5) A DUI/DWI offense under federal, state, tribal, or local law; 

(6) A domestic violence offense under federal, state, tribal, or local domestic violence law (or has been found to have committed acts of domestic violence);

(7) Misdemeanor offenses under federal or state law related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.


Under the new proposed rule, a vacated, expunged, or modified conviction or sentence would still be recognized for purposes of determining whether an individual is eligible for asylum, unless the applicant can establish that the change was not for immigration or rehabilitative purposes.

The proposed rule would also remove the automatic review of a discretionary denial of an alien’s asylum application. The current regulation mandates that denial of asylum must be reconsidered
if the denial is solely based on exercise of discretion, and the applicant is subsequently granted withholding of deportation or removal.

These changes would severely limit foreigners' ability to obtain asylum in the United States.