New Rule Will Allow Thousands to File I-485s starting October

[KevinNelson]

I read the following from Shusterman's Immigration Update:

 

New Rule Will Allow Thousands to File I-485s in October

Thanks to President Obama, a new rule will take effect onOctober 1, 2015 which will allow thousands of immigrants with backed-up priority dates in the employment-based andfamily-based categories to apply for adjustment of status (as well as for EADs and Advance Paroles) even though their priority dates are not yet current.

And not only the principal immigrant but their spouses and children will be able to apply for these benefits.

This is, without a doubt, the most positive executive action to benefit the legal immigration system that I have seen in the 40 years that I have been practicing immigration law!

So the question now is this: Would this apply to my step-son? I've already filed an I-130 for him (last month).

 

http://blogs.ilw.com/entry.php?8806-New-Rule-Will-Allow

Edited September 11, 2015 by dnoblett
Add Link to Article. (see edit history)

[warpedbored]

I haven't heard about this so I don't know. We just got our welcome letter from NVC a few weeks ago so after 7 years were finally getting close. They're working on Jan 08 right now so we have about 10 months to go I assume.

[Randy W]

From the article

 

2B Preference Category

Unmarried adult sons and daughters of green card holders will be able to apply for adjustment of status about 18 months before their priority dates are current although only a few months early for Mexicans and Filipinos.

 

. . .

 

You can only apply for adjustment of status through an employment-based or family-based category if you are present in the US in lawful nonimmigrant status or if you qualify for adjustment of status under Section 245(i) or Section 245(k) of the Immigration and Nationality Act.

 

 

 

I'm fairly sure that it would extend only to those already in the states, basically to the processing of the I-485, but not the I-130. (Sections 245(i) and 245(k) have to do with unlawful presence)

Edited September 11, 2015 by Randy W (see edit history)

[dnoblett]

Kind of looks like a reinterpretation of the I-485 based on pending I-130 rule, it use to be the I-130 had to result in an immediate visa number or a visa number had been assigned for the I-485 to process.

 

In this new case it looks like if step son has a visit visa and can legally enter the country, an I-485 + I-131 + I-765 can be filed based on the pending I-130, the I-485 will remain pending the months or even years until a visa number can be assigned to the I-130 case.

[Randy W]

Kind of looks like a reinterpretation of the I-485 based on pending I-130 rule, it use to be the I-130 had to result in an immediate visa number or a visa number had been assigned for the I-485 to process.

 

In this new case it looks like if step son has a visit visa and can legally enter the country, an I-485 + I-131 + I-765 can be filed based on the pending I-130, the I-485 will remain pending the months or even years until a visa number can be assigned to the I-130 case.

 

 

This is it from the USCIS - sounds from this like it MAY also affect the overseas I-130 processing as well, as it is basically an attempt to better align the Visa Bulletin with the actual availability of visas.

 

So the article from Schustermann may simply be an attempt to forecast the new revisions to the Visa Bulletin. My head is swimming at this point.

 

USCIS Announces Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status

 

 

 

What is Changing

Two charts per visa preference category will be posted in the DOS Visa Bulletin:

• Application Final Action Dates (dates when visas may finally be issued); and
• Dates for Filing Applications (earliest dates when applicants may be able to apply).

Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. Applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status.

To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:

• Documentarily qualified visa applicants reported by DOS;
• Pending adjustment of status applications reported by USCIS; and
• Historical drop off rate (for example, denials, withdrawals, abandonments).

 

[KevinNelson]

So I now have a question: We have filed an I-130 for my stepson. Is it possible, during these seven years, for him to get a visitors visa? My wife is under the impression that by filing that I-130, we killed visitor visa options and student visa options.

 

Thank you for your feedback.

[dnoblett]

The only I-130 that can be filed and processed overseas are for spouse and stepchildren of US Citizen ( DCF ), or visas that result in an immediate visa number under the unlimited class, an I-485 in that case does not apply, it is only for adjustment of status of a person in the USA, (I-130 or I-129F filed in the states) case.

[dnoblett]

So I now have a question: We have filed an I-130 for my stepson. Is it possible, during these seven years, for him to get a visitors visa? My wife is under the impression that by filing that I-130, we killed visitor visa options and student visa options.

 

Thank you for your feedback.

 

Never hurts to try, why not allow visit family? I have seen posts about getting visit visa while a petition is pending,

[Randy W]

The only I-130 that can be filed and processed overseas are for spouse and stepchildren of US Citizen ( DCF ), or visas that result in an immediate visa number under the unlimited class, an I-485 in that case does not apply, it is only for adjustment of status of a person in the USA, (I-130 or I-129F filed in the states) case.

 

 

What I should have said is that the OP's step-son IS overseas.

 

Read the USCIS article I linked above - the change apparently has to do with the way the Visa Bulletin is generated, and already available Visas are utilized. It WILL affect the OP's step-son, if the allocated Visas are more efficiently used. As the article says, the change will be done "in coordination with DOS".

 

The reference to I-485 applications was in a headline for the Schusterman article, since the new Visa Bulletins will indicate the date at which an I-485 can be filed.

 

Still, what it seems to boil down to is what we've said all along - watch the Visa Bulletin - but now, expect a change beginning in October. So I believe the answer is, "Yes, it will apply to his step-son.", but only if they find that available Visas are being under-utilized.

 

The DOS Visa Bulletin for October is already available, but, for the most part, shows only a one-month step in processing dates - http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html

 

Edited September 11, 2015 by Randy W (see edit history)

[newacct]

The change is that there are now two different dates relating to the wait for visa numbers in each category -- the "Date for Filing" and the "Final Action Date". The Final Action Date indicates the priority dates for whom a visa number is available and your immigrant visa or Adjustment of Status can be approved, whereas the Date for Filing (which is one or more years ahead of the Final Action Date) indicates the priority dates for whom they can submit the application for immigrant visa or Adjustment of Status.

 

Previously, there was just one date, basically what is now called the Final Action Date, that is used to both determine whether you can file or be approved. As a result, people had to wait until a visa number is available before they can file, which meant they had to wait still longer for it to be approved. Now, you can file before a visa number is available, so will get the visa faster. For Adjustment of Status people, having pending Adjustment of Status also gives the benefits of being able to stay in the US, and the ability to get EAD and AP for work and travel in the meantime.

 

From past posts, the OP does not qualify to petition his step-son, because the relationship was not established prior to the step-son turning 18. The OP's wife as a permanent resident can petition his step-son in the F2B category, which under the October 2015 visa bulletin has a wait of about 5 years to the Date for Filing, and a wait of about 6.5 years until the Final Action date. If his step-son is in the US in legal status at the time the Date for Filing passes his priority date, he can file for Adjustment of Status at that time.