Reminders for the New Year: Part 4 of 4

We at the Murthy Law Firm now present our readers with the last in our four-part series of New Year’s Reminders, which addresses the importance of checking expiration dates related to immigration cases. The monthly U.S. Department of State (DOS) visa bulletin should also be referred to regularly. While there are many who routinely check the visa bulletin, awaiting its issuance each month, there are other foreign nationals who are not sufficiently aware of the importance of this publication.

Regularly Check Priority Date Movement to File I-485

Those who are interested in obtaining permanent resident status, but are not familiar with the visa bulletin, should inform themselves of this important publication. Learn about priority dates by reading our informative article, Immigration Basics: The Priority Date and Its Importance (03.Sep.2010). The visa bulletin <> is available via a link to the DOS WebSite from MurthyDotCom. Monthly analyses of priority date movement are included in our Visa Bulletin section.

Many foreign nationals watch for the issuance of the visa bulletin each month and actively follow various predictions of cutoff date movement. Those individuals understand that the visa bulletin determines when the beneficiaries of immigrant petitions (such as the I-140 Employer Petition or I-130 Family Petition) can move forward with filing an application for adjustment of status (I-485). It also determines which of those who filed I-485s previously are eligible for approval during the month covered by the visa bulletin. An application for adjustment of status can be filed only if the priority date is current, meaning that it predates any cutoff date in the visa bulletin for the particular category. Thus, those waiting to file the I-485 should check the visa bulletin when it is issued each month, to know immediately when their priority dates become current.

Be Vigilant: File the I-485 and Obtain EAD/AP

As regular MurthyDotCom readers are aware, the visa bulletin indicated current priority dates in all employment-based (EB) categories (except the category for other workers) in July of 2007. More recently, in late 2011 and early 2012, the cutoff dates in the employment-based, second preference (EB2) India category advanced by more than two years in a period of just a few months. Both of these events were followed by unavailability of visa numbers and, later, retrogression of the visa bulletin cutoff dates.

The events in 2007 were unexpected, and a series of surprises followed in 2011 and 2012. Anyone who missed either of these opportunities to file for adjustment of status when they could have done so, now better understands the importance of checking the visa bulletin on a regular basis.

As these events illustrate, the visa bulletin cutoff dates are sometimes subject to significant, unanticipated movement that can briefly open opportunities for the filing and/or approval of adjustment-of-status filings during narrow windows of time. It is necessary to know about these shifts, in order to potentially take advantage of any temporary opportunities.

Cutoff date advancements give many individuals a potential opportunity to obtain immigration benefits by filing their applications for adjustment of status. There are benefits to moving forward with these filings, even if priority dates retrogress again before the I-485 can be adjudicated. These opportunities include an ability to travel with an advance parole (AP) document, to work with an employment authorization document (EAD), and, in some cases, the ability to move to a different employer without losing one’s employment-based green card case. Of course, as indicated above, the window of opportunity to file an I-485 application may not last, so potential applicants must pay close attention to the movements of cutoff dates.

Of course, regular MurthyDotCom readers are well aware that there has not been any movement of the EB2, India cutoff dates yet during fiscal year 2013 (FY13). For some, this may make it seem as if there is no reason to regularly check the visa bulletin. At some point, though, advancement of the EB2 cutoff dates will begin, yet again. Thus, the practice of checking each month continues to be important.

Consider Options – EB/FB Filing and Upgrade to EB2

Some examples of the rapid movement of cutoff dates illustrate the importance of considering multiple approaches to the same goal, and moving quickly when opportunities arise. This can only happen if one is informed, and learns of options promptly. For example, in 2010, there was unexpected, rapid advancement of family-based (FB) priority dates. Unfortunately, many of the individuals who were unable to file the I-485 application as derivative spouses of EB green card holders because of post-2007 retrogression did not consider the option of filing an FB case. They simply were awaiting the time when their respective spouses’ EB cutoff dates would become current again, to apply as derivatives. Many did not realize that they would potentially be able to file an I-485 much quicker based on family-based petitions filed by their lawful permanent resident (LPR) spouses. It is often possible to a pursue green card via more than one avenue and, thus, increase one’s chances of gaining permanent residence earlier.

Another example of the use of multiple options in the EB categories is the strategy known as EB3 to EB2 upgrades. For many with EB3 cases, this allows the EB3 case to continue, while efforts are made to shift into the more favorable EB2 category. At this time, the severe retrogression in EB2, India, may not make that category appear significantly more attractive than EB3. However, for most situations, upgrading to EB2 provides benefits in the long run. More information on this topic is available in our NewsBrief, Considerations for EB3 to EB2 “Upgrade” (01.Jul.2011).

Conclusion: Stay Informed

Laws, procedures, and situations change regularly. Tracking these changes, including the changes in the visa bulletin, helps one to avoid missing deadlines and opportunities. Many who were aware of the unexpected opportunity to file for adjustment of status based on the July 2007 visa bulletin are now permanent residents. The same is true for some who were able to file at the end of 2011. Others may still have a long wait, but can enjoy the benefits of their pending I-485 applications: unrestricted employment authorization, advance parole, and potential AC21 employment portability for their cases.

When seeking strictly limited U.S. immigration benefits, timing can be everything. Our recommendation is to make a New Year’s resolution to keep oneself informed of key immigration changes and options. The Murthy Law Firm makes this otherwise overwhelming task easier through our regular updates on MurthyDotCom or when you subscribe to our free eNewsletter, the MurthyBulletin.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.