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

US Citizenship & Immigration Services (USCIS) along with the Department of State (DOS) is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revision in the process means that certain people will be eligible to file their adjustment of status applications (and the interim benefits that go along with that filing including work cards and travel permission) earlier than the date their Green Card priority date becomes current. USCIS states that the "revised process will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad."
 
Implementing President Obama's November 2014 executive actions on immigration—as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century—the revised process will enable foreign nationals (and their spouses) to obtain work cards and travel permission faster than they might have, and enable DOS to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the monthly Visa Bulletin. All this, according to USCIS, will "help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates."

What Is the Visa Bulletin?

Every month the DOS publishes the current immigrant visa availability in a monthly Visa Bulletin. This Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date for both the family-based and employment-based preference categories. The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS; or, if a labor certification was required to be filed with the applicant’s immigrant visa petition, the priority date is when the labor certification application was accepted for processing by the Department of Labor. Availability of an immigrant visa means eligible applicants are able to take the final steps in the process of becoming US permanent residents—namely, applying for an immigrant visa at a US Embassy or Consulate abroad or else applying for an adjustment of status to permanent residency if in the US.

What is Changing in the Visa Bulletin?

Effective in the October Visa Bulletin, there are now two charts per visa preference category:

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

Applicants can use the charts to determine when they are eligible to file their Form I-485, Application to Register Permanent Residence or Adjust Status. USCIS states that to determine whether additional visas are available they will compare the number of visas available for the remainder of the fiscal year with:

  • Documentarily qualified visa applicants;
  • Pending adjustment of status applications; and
  • Historical drop-off rate, including denials, withdrawals, and abandonments.

Who is Affected?

The October Visa Bulletin introduces the new adjustment filing date chart and allows many people who have been waiting for their Green Card priority date to become current to now file for the adjustment of status. Significantly the "Dates for Filing" for China-born and Indian-born nationals in the EB-2 category is May 1, 2014 and July 1, 2011, respectively, which is years ahead of these Green Card priority dates (January 1, 2012 and May 1, 2005, respectively). The changes also affect family-based visa applicants. Therefore, someone who has been waiting for a priority date for their Green Card may be able to apply for adjustment of status earlier. They will not get their Green Card unless the Green Card priority date becomes current but they will enjoy the benefits of being an adjustment applicant, namely the interim work card and travel permission that they can keep while their adjustment of status application remains pending.

For those eligible to apply, USCIS has more information about filing the adjustment of status. One of the most sought after benefits and advantages to filing adjustment of status is that applicants can concurrently file employment authorization and travel permission applications. An experienced immigration attorney will be able to advise if foreign nationals are eligible to file for adjustment of status and what the next steps would involve.

UPDATE SEPTEMBER 25, 2015: The Department of State (DOS) has today unexpectedly published an updated and revised October 2015 Visa Bulletin. This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and the revised dates affect priority and filing dates for certain nationalities. US Citizenship & Immigration Services explains:

Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process. The Dates for Filing Applications sections on pages 4 and 6, which have been adjusted, have been identified in bold type and highlighted.

Applicants are advised to use the revised chart when determining eligibility to file adjustment of status applications. Applicants are advised to consult with qualified immigration attorneys for questions about eligibility and the revised visa bulletin. We will post more information as we receive it.

UPDATE SEPTEMBER 8, 2015: Immigrants are protesting the amendments to the October Visa Bulletin by sending flowers to the Department of Homeland Security (DHS). Inspired by the nonviolent protest methods of Mahatma Gandhi, immigrants are sending bouquets and letters of protest decrying the bulletin reversal that affected thousands of excited applicants who were preparing to file their adjustment of status applications. Many applicants spent between $2,000 to $5,000 to prepare for the applications, not to mention countless hours and often days tracking down often difficult to obtain paperwork.
 
"We started making plans," Sridhar Katta, a mechanical engineer and M.B.A. who lives in Seattle with his wife and sixteen-year-old twin boys, said to CNN. "All our hopes were dashed within a matter of days." So far the Department of Homeland Security has only issued vague comments about the sudden turn-around. One DHS spokeswoman told CNN: "Further analysis of a recently published Visa Bulletin, intended to improve the issuance of green cards, showed that some of the new filing dates in that bulletin did not accurately reflect visa availability." Whatever happens, one can only hope that the sweet smell of the flowers will remove the sour taste left in our mouths.

UPDATE SEPTEMBER 22, 2015: In the latest Kafka-esq development in the ongoing saga stemming from the October 2015 Visa Bulletin updates and revisions that have affected thousands of immigrants, USCIS announced that beginning with the November 2015 DOS Visa Bulletin, if USCIS "determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas" they will state on the USCIS website that applicants may use the "Dates for Filing Visa Applications" chart. Otherwise, immigrants will need to use the the "Application Final Action Date" to determine when to file their adjustment of status applications. USCIS states that they anticipate making this determination each month and posting the relevant chart on their website within one week of visa bulletin publication.

The Syrian Migrant Crisis

The horrific images of the drowned Syrian boy, three-year-old Aylan Kurdi, as well as images of refugees stranded in the Budapest train station and other tragic news reports including the seventy-one migrants who suffocated to death in a refrigerated truck in Austria, all have led to renewed calls for more action to be taken on behalf of approximately four million displaced Syrians.

“The migrant crisis in Europe is essentially self-inflicted,” Lina Khatib, a research associate at the University of London and former head of the Carnegie Middle East Center in Beirut, said in the New York Times. “Had European countries sought serious solutions to political conflicts like the one in Syria, and dedicated enough time and resources to humanitarian assistance abroad, Europe would not be in this position today.”

Europe, Iceland, St. Louis, and the Pope Offer Help

German Chancellor Angela Merkel said that Germany is investing six billion euros ($6.7 billion) to cope with the migrant crisis, France has committed to receiving 24,000 migrants, and Britain has announced a plan to accommodate 20,000 Syrian migrants.

In addition to these actions by major European nations, one of the first countries to offer increased help came from Iceland, whose population is just over 300,000. After the government pledged to assist just fifty Syrians, author and professor Bryndis Bjorgvinsdottir asked Icelanders on Facebook to speak out if they wanted the government to do more. More than 12,000 people responded to her Facebook group, “Syria is calling,” to sign an open letter to their welfare minister, Eygló Harðar. “I think people have had enough of seeing news stories from the Mediterranean and refugee camps of dying people and they want something done now,” she said to Iceland’s RÚV television. Icelanders offered to house refugees and provide clothes, assist in job training, and give language lessons.

Demonstrating how strongly the plight of Syrian migrants have affected people all over, another grass roots offer to help has come from St. Louis. Greg Johnson, a Presbyterian pastor, said that St. Louis should welcome at least 60,000 migrants, citing the city’s “track record of welcoming Muslims into our city and trusting them with our communities.” Johnson pointed out that when St. Louis previously accepted 60,000 Bosnian refugees, the city hugely benefited. “Entire neighborhoods saw revitalization, new businesses were started, and the city’s decades-long decline in population slowed. Our region is better for their having joined us.”

Pope Francis has also called on every European parish, religious community, monastery, and sanctuary to take in one refugee family.

What Is the US Doing?

Despite a prescient call by senators earlier this year urging President Obama to allow at least 65,000 displaced Syrians to resettle in the US—a move which was derided by some at the time—there is only likely to be a slight increase in the quota of Syrian migrants, unless changes are made.

Senator Amy Klobuchar, who signed the letter urging Mr. Obama to accept more Syrian refugees, said in the New York Times: “We knew of the mounting problem for the humanitarian issues, the moral issues.” And in BuzzFeed she said: “Europe should clearly take the lead because they are close in proximity, but that doesn’t mean we shouldn’t take part, and doesn’t mean some countries in the Mideast like Saudi Arabia shouldn’t take some refugees as well.”

Eric P. Schwartz, a former assistant secretary of state for population, refugees and migration, and now dean of the Hubert H. Humphrey School of Public Affairs at the University of Minnesota, said presidential action is needed for any changes to come about. “The folks who lead our humanitarian work in the government are the best in the world, but you need the president of the United States and the secretary of state, but the president in particular, to speak out about our responsibilities here and to define the challenge,” he said in the New York Times. Increasing the number of Syrians granted asylum to 50,000 on an emergency basis would also send “an extremely powerful signal to Europe and to the world.”

UPDATE: 9/11/2015. President Obama announced plans yesterday for the United States to take in at least 10,000 displaced Syrians over the next fiscal year. This comes after mounting criticism that the US is not doing enough to assist the approximately four million displaced Syrians. Responding to this announcement in Buzzfeed, Paul O’Brien, Oxfam’s vice president for police and campaigns, said: "The White House’s pledge is a start but it just scratches the surface...The U.S. can and must do more to help ensure that thousands of Syrians fleeing violence have the safety and security they need."
 

Lourdes Sierra: The DLG-Proust-Actors Studio Questionnaire

Lourdes Sierra is no stranger to the world of immigration law. Though she is currently our part-time bookkeeper, Lourdes has many years of experience as a paralegal at immigration law firms. She previously worked at Avirom & Associates, where Protima, Lizzie B, and Matt Bray also started their careers, and Spar Bernstein Lewis LLP, a large firm in Manhattan. Even now, along with her bookkeeping duties, she works two days a week at a small firm in White Plains where she focuses on family immigration.

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LA Times: "The loaded term 'anchor baby' conceals complex issues"

Donald Trump began his presidential campaign calling Mexicans "rapists" and drug dealers and now he and other presidential contenders have moved onto decrying so-called "anchor babies"—a term that has been denounced by many as offensive—and have advocated for changing the fourteenth amendment to repeal "birthright citizenship."

The Reason for Undocumented Immigration

In his policy paper, Trump claims that birthright citizenship "remains the biggest magnet for illegal immigration." While the paper does not provide further explanation, as the Los Angeles Times noted, the "impulses driving immigrants to have children in the United States vary widely, as do the economic circumstances of those who drop 'anchors.'"  

While there are some instances of “birth tourism”—when legal but usually temporary immigrants travel to the US to give birth in order to provide the child US citizenship—Louis DeSipio, a professor of political science at UC Irvine, said that “the notion that parents have children in the U.S. to protect themselves from deportation is a departure from reality,” and observed that US-citizen children must be twenty-one-years-old to begin the process of sponsoring a parent who is in the country without legal status. He said in the Los Angeles Times: "It would take an amazingly tactical or Machiavellian parent to somehow think that the child's status protects the parents...They are not thinking 25 years in the future."

Zenen Jaimes, a policy analyst with United We Dream, which advocates for the rights of young immigrants, was born in Chicago to undocumented Mexican parents who came to the US because of the economic crisis in Mexico. He said in the Los Angeles Times that his parents did not intend to have children to protect themselves from deportation. “Once they got here they just went through the normal process of starting a family," he said. While his mother obtained legal residency after his older brother sponsored her, his father was deported. "That's the case for thousands of kids who grew up like me[.]”

What Would Happen if US Changed Birthright Citizenship?

The results could be very problematic, argues the Huffington Post, since changing the fourteenth amendment would create second-class and a large number of stateless individuals with limited rights. Citing examples from Germany, where it has historically struggled to integrate their Turkish population due in part to their citizenship policies, the Dominican Republic, which retroactively stripped Haitian-Dominicans of citizenship despite international condemnation, and Japan, which had previously denied citizenship to Koreans living in Japan, changing the fourteenth amendment would have a vast impact on not only immigrants but US citizens as well. 

The US would need a whole new government bureaucracy, argues Margaret D. Stock, a 2013 MacArthur Foundation Fellow and attorney with the Cascadia Cross-Border Law Group:

America has no national birth registry, no squads of skilled government lawyers who can determine whether a person’s parents hold a particular immigration status at the moment of a baby’s birth. We’d need a whole new government bureaucracy to make birth adjudications. Americans would have to pay for this new bureaucracy, which would be tasked to decide the citizenship of some 4 million babies born in America each year.

David Baluarte, a law professor at Washington and Lee University and the director of the Immigrant Rights Clinic, said in Mother Jones that ending birthright citizenship would be “a disaster.” Creating a class of stateless migrants, he says, “would be a humanitarian crisis within the United States."

AILA: Delays in Production of Work Authorization and Green Cards

The American Immigration Lawyers Association (AILA) is reporting that there are delays in the issuance of employment authorization and permanent resident cards (aka Green Cards) after approvals of I-765 and I-485 applications. US Citizenship & Immigration Services (USCIS) has confirmed through AILA that because the card production facility in Corbin, KY is undergoing maintenance, all card production work has been transferred to the facility in Lee's Summit, MO, resulting in a production backlog. Recipients may therefore not receive their cards until two to three weeks after application approval. USCIS anticipates that the backlog will be resolved in September 2015.