Strategy to Deal with EB Retrogression: I-130 Family Petition

The severely retrogressed cutoff date in the U.S. Department of State (DOS) Visa Bulletin for October 2012 has created many difficult situations. There are numerous individuals who were able to obtain permanent residence during the brief period in fiscal year 2012 (FY12) when cutoff dates advanced. For some, family members remain who did not become permanent residents. The following describes a possible strategy that may help to reduce the ultimate waiting time for spouses and children yet to become permanent residents.

Disconnect When Principal – but Not Family – Obtains Approval

As regular MurthyDotCom readers know, FY12 brought some unusual developments with respect to the October Visa Bulletin and EB2 India and China cutoff dates. The DOS advanced the EB2 India and China cutoff date at an extraordinary pace, only to run out of visa numbers by April 2012. The rapid forward movement followed by complete unavailability of visa numbers until October 1, 2012, resulted in many situations in which the primary beneficiaries in green card cases have become permanent residents while the spouses and/or children in these cases have been left out, feeling helpless in the process.

While the focus of this article is the more recent EB2 developments, this situation and related variations are familiar to many in the EB3 category. The strategy below can also be applied in EB3 cases.

Example:

Ravi’s employer filed a PERM labor certification on his behalf on March 14, 2008. The labor certification was approved, as well as the related I-140 employer petition. In early December 2011, Ravi filed his I-485. His wife, Vijaya, also filed her I-485, as a derivative beneficiary (dependent) of her husband.

Ravi’s case was processed very quickly, and without any request for evidence (RFE) or other delays. Thus, he received the I-485 approval and became a U.S. permanent resident at the beginning of March 2012. Vijaya was not as lucky. She received an RFE with some questions about her birth certificate at the end of February 2012. By the time she was able to respond, the visa numbers were no longer available. Thus, Vijaya’s I-485 is still pending, and cannot be approved until her priority date becomes current again.

Ravi and Vijaya were dismayed at the cutoff date of September 1, 2004 in the October 2012 Visa Bulletin. They want to know if there is anything they can do to enable Vijaya’s becoming a permanent resident a little faster.

Suggestion: Consider an I-130 Filing

Since Ravi is a permanent resident, he is eligible to file an immigrant petition for his wife in the family-based, second preference “A” category (FB2A). The family categories are subject to limitations and cutoff dates, just like the employment-based (EB) categories. However, there has been some fairly rapid movement in the FB cutoff dates that might be helpful for couples like Ravi and Vijaya.

The FB2A cutoff date in the October Visa Bulletin for India is June 1, 2010. The DOS has indicated that demand in this particular category has been dropping. Since usage in this category is somewhat low, the dates are expected to move forward. There is a potential, therefore, for some significant forward movement, if demand remains low. If Ravi thus files the family-based I-130 immigrant petition for his wife on November 1, 2012, in the FB2A category, it will establish her FB priority date as November 1, 2012, and provide a separate potential basis for Vijaya to become a permanent resident.

I-130 Filing Provides Additional Option for Approval

If Ravi files an I-130 petition for his wife, she will have two possible ways to become a permanent resident. The I-130 filing does not mean that she loses her eligibility in EB2 as Ravi’s derivative beneficiary. There is no need to make a choice between the FB and EB options when the priority date is not current in either category.

Filing the I-130 simply means that Vijaya will be waiting in both the EB2 India and the FB2A India queues. She will benefit from whichever category first becomes current for her particular priority date in the relevant category. At this time, since cutoff date movement in the EB2 category has become so unpredictable, it is impossible to estimate whether Vijaya’s EB2 priority date of March 14, 2008 will become current before an FB2A priority date of November 1, 2012.

For couples in this situation with EB2 priority dates that are even more recent than the date used in our example, the likelihood of benefiting from an FB2A case is even greater. Additionally, while our fictitious Vijaya is in the United States, and can obtain an employment authorization document (EAD) and Advance Parole (AP) travel permission, some couples are in worse situations. The derivative spouse may be outside of the United States awaiting a consular processing (CP) case. These spouses have no way to enter or return to the U.S. before the priority date becomes current again. For these couples, it is particularly important to consider all options, including using the FB2A option by filing the I-130 petition.

Conclusion

Annual limitations on how many immigrants may enter the United States inevitably create waiting times reflected in the cutoff dates in the DOS visa bulletin. The strategy explained above is one option that could help eligible individuals benefit from any favorable future developments in either the EB2 or FB2A category. Such developments are often short-lived and only those who have made the filings at an earlier point are likely to be eligible to benefit for such short-term opportunities. Anyone with a question regarding the strategy discussed here, or considering other possible avenues in similar cases, is welcome to request a consultation with an experienced attorney at the Murthy Law Firm by contacting our office.

Copyright © 2012, MURTHY LAW FIRM. All Rights Reserved