Visa Bulletin’s “Dates of Filing” and its Impact on Visa Applicants
Many months ago, I mentioned that Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State, indicated that there is a likelihood that come October, 2016, USCIS may utilize the “dates of filing” schedule in the visa bulletin, colloquially referred to as “Schedule B” for the employment-based visa categories.
As the cut-off date on Schedule B is often times significantly later than that of Schedule A, the usage of Schedule B would allow many additional I-485 (adjustment of status) applicants to become eligible to file the I-485 application because their priority date has surpassed the cut-off date on Schedule B. The obvious advantages of being able to file I-485 application are: (1) applicant and accompanying family members are able to also apply and receive employment authorization and advance parole (2) applicant and accompanying family members are able to lawfully stay in the U.S. while their I-485 applications are pending, even after the expiration of their I-94 and (3) applicant and accompanying family members can avoid attending visa interviews at the foreign consular post.
An additional issue that often plague potential immigrants is whether the filing of I-485 will also allow their children to lock-in their age and receive protection under U.S. Child Status Protection Act (CSPA). A “child” is defined as an individual who is unmarried and under the age of 21. Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” U.S. Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants.
Under INA Section 203 (h)(1)(A), in order for the child to be protected by CSPA, he/she must seek to acquire lawful permanent resident (LPR) status within one year of the visa being available. Thus, to analyze whether filing I-485 would allow the child to be protected by CSPA, we must consider two questions:
- Does the filing of an I-485 application constitute “sought to acquire” LPR status?
- Does the usage of Schedule B establish that an immigrant visa is available?
The answer to the first question has been well settled. The USCIS and Department of State (DOS) have defined the term “sought to acquire” in many instances to include the following actions:
- A filing of an application for adjustment of status (Form I-485);
- An application for an immigrant visa (e.g. DS230 or DS260); or
- A filing of Form I-824
As long as the child files one of these applications within one year of the visa becoming available, he or she has satisfied this requirement. See Mater of O. Vasquez, 25 I&N Dec. 817; See Also USCIS Policy Memorandum (PM 602-0097) published on April 15, 2015.
The answer for the second question has been subject to much debate amongst immigration practitioners because USCIS has yet to provide definitive guidance. On one end, certain practitioners point to INA § 245(a) and 8 CFR § 245.1 as legal grounds supporting the contention that Schedule B’s date of filing of I-485 means that an immigrant visa number is available.
INA § Sec. 245. [8 U.S.C. 1255]
(a) The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if
(1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his application is filed.
8 CFR § 245.1 Eligibility.
(a) General. Any alien who is physically present in the United States, except for an alien who is ineligible to apply for adjustment of status under paragraph (b) or (c) of this section, may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application.
On the other end, other practitioners, including me, feel that USCIS did not intend Schedule B’s cut-off date to signal the availability of visa numbers because the purpose for the adoption of Schedule B, as discussed by Obama’s immigration reform, is to allow USCIS to better determine the number of individuals who are seeking visas and the Department of State to better allocate visas throughout the fiscal year. The usage of Schedule B cut-off date as an indicator of visa availability would cause great confusion for all immigrant applicants worldwide and render the cut-off date for Schedule A moot.
Certainly, USCIS and the Department of State are expected to provide further guidance on their perspectives to this thorny issue. Nevertheless, until the question gets a clear answer, all potential applicants with children facing the “age-out” problem should still consider filing the I-485 for them and fight for another day.
