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1.
The immigrant Visa Number and the U.S. Department of State's Visa
Bulletin
The U.S. Immigration and Nationality Act
(INA) limits the number of immigrant visas that can be issued each
year. As a result, the U.S. Department of State regulates the immigrant
visa numbers to ensure that the annual statutory limit is not
exceeded.
An immigrant visa's "Priority
Date" is established by
the date when your Form I-140 application is filed. Normally, the
immigrant
visa's priority date
for Form I-140 application is not always current for some alien
applicants coming from
such countries as China and India.
The visa bulletin of U.S.
Department of State summarizes the availability of immigrant numbers.
U.S. Consular officers are required to report to the Department of
State documentarily qualified applicants for numerically limited visas;
U.S. Citizenship and Immigration Services (USCIS) in the Department of
Homeland Security reports applicants for adjustment of status. The
immigrant visa numbers allocations were made, to the extent possible,
in chronological order of reported priority dates. The
Visa Bulletin is generally published around the middle of the preceding
month.
The Visa Bulletin reflects available visa numbers for cases with
"priority
dates" before the listed dates.
The beneficiary of a labor
certification or immigrant visa petition is given a priority date for
obtaining an immigrant visa based on when the labor certification or
immigration visa petition
(Form I-140 or I-130) was filed. When the U.S. Department of State
determines that the current rate of demand might lead to too many visas
being issued, it imposes cut-offs based on these priority dates. When a
cut-off date is imposed, it means that only individuals with priority
dates earlier than the dates listed are eligible to apply for U.S.
permanent residence.
To view the most recent immigrant visa
availability, refer to the U.S. Department of State Visa Bulletin. A
column marked C indicates
current status and that there is no quota backlog for this category. If
the country in which the alien was born is marked with a C,
you may file an I-485 adjustment of status, or be eligible for consular
processing. If the country in which the alien was born is marked with a
U, it means the
immigrant
visa number is not available.
With the change of immigration
regulation, rules on adjustment of status become more restricted. You
must
provide visa records to establish your and your family member's
continuous lawful
status since you or them entered the U.S. This can be a serious problem
for those people
whose status expired prior to their application for immigration was
approved.
2.
The Preference
Classes for Employment-based and Family-based Immigration
Preference
Classes are numbered categories which define types of immigrant visas.
There are
separate sets of preference classes for
employment-based immigration and family-based immigration. An immigrant
case must fit into one of the
preference classes for an immigrant petition to be approvable, and the
preference class must be indicated on the form filed for the immigrant
petition - the I-140 for employment-based petitions, and the I-130 for
family-based
petitions.
The
preference classes for employment-based I-140 immigrant visa petitions
are:
The
preference classes for family-based I-130 petition for alien relatives
are:
3.
Understanding the Priority Date
The priority date is the
date
the first application for permanent residence is
filed with a government agency. For an employer-sponsored case, this is
either
the date a Labor Certification is first filed with the Department of
Labor, or
the date of I-140 petition for a Labor Certification waiver case,
such as EB1 or NIW. For a family-sponsored
case, this will be the date the I-130 petition for alien relative is
filed.
The
Priority Date establishes the foreign national's place on line for an
immigrant
visa. There are limited numbers of immigrant visas available for each
of the
various categories. These categories are called Preference
Classes.
Each preference class has its own queue for immigrant visas, and the
priority
date and the preference class of the petition determine how long the
person
being petitioned for has to wait for a Green Card.
If
your priority date is before the date listed for your
category and you have an approved I-140 petition, you may file an I-485
adjustment of status application; or be eligible for an immigrant visa
if you are processing your change of status through a U.S. consulate in
your home country instead of filing an I-485 adjustment of status
application with USCIS.
If
your priority date is on or after the date listed for your
category, you cannot file your I-485 adjustment of status or get an
immigrant visa at a U.S. consulate at this time. You need to maintain
your current immigration status to remain in the U.S.
There is no way to get ahead on the priority date list other than
filing an immigrant visa petition in a higher preference category, if
you are qualified.
4.
The Country of Birth vs. the Current Citizenship
A
foreign national must wait for his or her country’s quota to
become current before applying for U.S. permanent resident status.
However, under the doctrine of cross-chargeability, a green card
applicant may use the country of chargeability of his or her spouse in
order to gain a leg up on the per-country quota.
If your country has a long wait time for approval of a green card due
to over utilization of the green card quota, you may be able to use the
country of origin of your spouse to receive your green card sooner that
what you had originally anticipated.
The
country to which a foreign national is charged
is the foreign
national's country of birth, not the current country of citizenship or
nationality. Countries
which often become oversubscribed more often than most other countries
include
India, Mexico, Philippine, and China. The immigrant visa availability
for these countries is
broken out separately by the U.S. State Department on its visa bulletin
web site.
The
visa numbers are based on your country of birth, regardless of your
current citizenship. However, if your spouse was born in another
country that is not subject to the backlog at this time, you will be
able to cross-charge your I-485
adjustment of status application to your spouse's country. This is
known as alternate chargeability.
This is only possible if both you and your spouse's I-485 are filed at
the same time. If your child was born in a third country, you cannot
use your child's country of birth for this purpose.
The
cross-country chargeability is most useful when the priority dates are
backlogged for certain countries. For your case, the husband was born
in India and the wife was born in Bangladesh, then the person born in
India can request chargeability under the spouse to file the I-485
application, if and when the priority date would not allow the filing
by the person from India.
5. The Chargeability Rule to File Form I-485 Application
Immigration
to the United States is numerically limited. This is controlled by an
annual allocation of immigrant visa numbers. Each family-based
immigrant category and employment-based immigrant category has its own
limited immigrant visa number. Additionally, there is a per-country
limit of 7 percent of the total immigrant visa numbers.
The
maximum number of family-sponsored and employment-based preference
visas that can be issued to citizens of any country in a fiscal year.
The limits are calculated each fiscal year depending on the total
number of family-sponsored and employment-based visas available. No
more than 7 percent of the visas may be issued to natives of any one
independent country in a fiscal year. Because of the combined workings
of the preference system and per-country limits, most countries do not
reach this level of visa issuance.
The
foreign state of chargeability is a United States immigration concept
– it is the country determined to be the applicant's origin. In
general, the applicant's country of birth will determine their country
of chargeability. For certain applicants born in oversubscribed
countries such as India and China, approval to be chargeable to another
country can significantly reduce the waiting time for their adjustment
of status or consular processing of their green card application. This
process is also known as alternate chargeability.
The
basic rule of chargeability is that one is charged against the quota
for the country of his or her birth. This determination is not
tied to citizenship or nationality. A person born in a particular
country is subject to that country's quota. For example, a potential
immigrant is born in India. He subsequently becomes a Canadian citizen.
Unless this individual fits within one of the exceptions discussed
below, he will still be subject to the backlogged quota for India, even
as a Canadian citizen.
In
some circumstances, an immigrant can cross-charge to the country
available to his or her spouse (provided that the spouse is immigrating
also). For example, cross chargeability would usually be available if a
person born in India were to marry a person born in Canada. If a U.S.
employer filed an employment-based, second-preference (EB2) petition on
behalf of the individual born in India, she or he would be able to use
the Canadian chargeability, if immigrating with the spouse.
Historically, this would mean immediate eligibility for immigration
benefits under the Canadian quota, rather than many years of waiting
under the heavily-backlogged Indian quota.
6.
USCIS Adjudicator's Evaluation for Form I-485 Petition, and the Need to
Keep Job with Employer During the Process of the Form I-485
Application
Simply
presenting evidence which relates to the Form I-485 application
requirements does
not necessarily mean that the I-485 application should be approved,
since the USCIS adjudicator needs to evaluate the submitted
evidence.
If
the USCIS adjudicator determines that the evidence does not meet the
standard
for the Form I-485 application, the additional evidence may be
requested from the
petitioner, or it is called Request For Evidence (RFE).
If
an underlying Form I-140 immigrant visa petition provides the basis for
the Form I-485 adjustment, and Form I-140 petiion has already been
approved, the USCIS officer will confirm that a qualifying job offer
still exists in an employment-based case. The USCIS officer will note
that changes in employment, withdrawal of a job offer, or the failure
of a petitioner’s business may affect employment-based
applications.
The USCIS officer will also confirm that the applicant continues to
meet all eligibility requirements through the date of final
adjudication, including reviewing the continuing validity of the
employment-based petition
The USCIS officer will verify that the employment-based adjustment
applicant’s immigrant petition for alien worker of Form I-140
remains valid. The USCIS officer will determine that the applicant is
either employed by the petitioner or the job offer still exists, that
the employer continues to have the financial means to employ the
applicant. In addition, the USCIS officer will determine that the
employer continues to be a viable business, including possessing a
valid business license in the county, state or jurisdiction within
which it is operating.
If the Form I-485 adjustment application has been pending for 180 days
or more, the applicant may be eligible for adjustment portability.
Portability allows the applicant to accept an offer of employment with
either the petitioner or a different employer in the same or similar
occupational classification as the position for which the petition was
approved.
7. How to Use the Dates of Filing Applications for Form I-485 Adjustment of Status
The
procedures regarding immigrant visa availability have changed by U.S.
Department of State, for the benefit of intending U.S. permanent
resident (i.e., greencard) applicants. These changes are reflected in
the Visa Bulletin which may be viewed at
http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
The U.S. Department of State’s (DOS’s) monthly Visa
Bulletin will now include two charts per visa preference category for
Family-based and Employment-based applicants as "Application Final
Action Dates", and "Dates for Filing Applications." In Sections 4.B.
(Family-Sponsored Preference Cases) and 5.B. (Employment-Based
Preference Cases), “Dates for Filing Applications” are
listed.
The chart for "Dates for Filing Applications" reflects dates for filing
visa applications within a timeframe justifying immediate action in the
application process. Applicants for immigrant visas who have a priority
date earlier than the cut-off date in the chart may assemble and submit
required documents to the Department of State’s National Visa
Center, following receipt of notification from the National Visa Center
containing detailed instructions. The cut-off date for an
oversubscribed category is the priority date of the first applicant who
cannot submit documentation to the National Visa Center for an
immigrant visa. If a category is designated “current,” all
applicants in the relevant category may file applications, regardless
of priority date
For many employment-based Green Card applicants' Adjustment of Status
using USCIS Form I-485 inside United States, U.S. Citizenship and
Immigration Services (USCIS) will use the “Dates for Filing
Applications” chart (in lieu of the “Application Final
Action Dates” chart in paragraphs 4.A. and 5.A.) to determine
when an application for adjustment of status (USCIS Form I-485) may be
filed. Adjustment applicants may also visit
"www.uscis.gov/visabulletininfo" for more information.
The statement in Visa Bulletin is consistent with USCIS’s
announcement that each month it will “monitor the visa numbers
and post the relevant DOS Visa Bulletin chart” on its website
under “When to File”. An intending greencard
applicant can then use this information to determine when to file an
adjustment application (Form I-485 Application for Adjustment of
Status). The “Dates for Filing Applications” chart
may be used only when USCIS determines that additional immigrant visa
numbers are available. Otherwise, per USCIS guidance, the
“Application Final Action Dates” chart must be used by
intending Adjustment of Status applicants.
8.
The Consular Processing
There are two primary paths to U.S.
permanent resident status (a Green Card). USCIS Form I-485 application
of adjustment of status is a process by which an eligible person, who
is already in the United States, can apply for U.S. permanent resident
status without having to return to his/her home country to complete the
processing of Green Card application.
Another primary path to U.S. permanent resident status is called
"Consular Processing." An foreign person who is the beneficiary of an
approved immigrant petition, such as Form I-140 approval or Form I-130
approval, and has an immigrant visa number immediately
available may apply at a U.S. Department of State (DOS) consulate
abroad for an immigrant visa, to come to U.S. and be admitted as a
permanent resident. Thus, this pathway is referred to as
“consular processing.”
The first step in consular processing is to determine if you fit into a
specific U.S. immigrant category. Many immigrants become eligible for a
U.S. Green Card through a petition filed by a family member (Form I-130
approval) or U.S. employer ( Form I-140 approval). The employment based
immigration categories require the U.S. employer to file a Form I-140 -
Petition for Alien Worker. The family based categories require that a
U.S. citizen or permanent resident relative file a Form I-130 -
Petition for Alien Relative.
If the immigration petition is approved (Form I-140 approval or Form
I-130 approval) and if you are the beneficiary of the petition and
living outside the U.S., USCIS can send the approved petition to the
Department of State’s National Visa Center (NVC) for consular
processing, where it will remain until an immigrant visa number is
available. The National Visa Center will send you a notice of receipt.
The
National Visa Center will send you another notice indicating when you
should
submit the immigrant visa processing fees and supporting
documentation.
After your fees and supporting
documentation are received by the National Visa Center, they will send
you a
packet of forms and instructions to your foreign address. Thereafter,
after
submission of those forms, the U.S. consulate near your foreign address
will
send you an appointment letter including instructions for the medical
exam, and
it will indicate when you must appear at a U.S. consulate for an
interview.
After the interview, the U.S. consular will review your application,
and decide
either granting your visa or requesting the USCIS to reconsider your
petition.
9. Are
Adjustment of Status Interviews always Required for Form I-485
Application?
In
years past, employment-based Green Card applicants have found that the
interview requirement was waived for them on account of their
qualifications. Now, interviews are a standard part of the process
after filing Form I-485, Application to Adjust Status.
The I-485 interview is almost a certainty if you submitted an
adjustment of status application these days. USCIS may waive the
interview for some applicants with especially straight forward cases
with strong evidence. But this is the exception.
Some of the more common questions that are asked at an I-485 interview
include questions about your work in the U.S., your experience, your
employment and ability, and your arrangements in the U.S. You should
answer honestly and accurately. Not knowing is better than lying.
However, if the
alien applicant are applying for Green Card of Form
I-485 application based on marriage, the applicant mat be called in for
an adjustment of status interview. That’s because USCIS is
very
concerned about people committing marriage fraud, and wants to have
a chance to test the spouse on knowledge of everyday matters
that
will prove that you are sharing a life.
If
you applied to Form I-485 adjusting status, based on marriage to a U.S.
citizen or lawful permanent resident, it is certainly that you
and your U.S. spouse will be called in for an immigrant
interview. The interview is to ensure that the marriage is genuine, and
not merely entered into for the purpose of obtaining a Green Card.
Also for Form I-485 application based on marriage, if USCIS suspects
marriage fraud in a Form I-485 application case, it may separate you
and your spouse in separate rooms, for what is called a
“marriage
fraud interview.” That means USCIS will ask each of you the
same
questions, and then compare your answers. If the answers
don’t
match up well, you can expect your Green Card to be denied.
If
you are called for an interview for some reason, with proper
preparation, you should not fear the adjustment of status interview,
and it does not mean that your application for adjustment of status has
been singled out for extra scrutiny. An immigration interview is a
normal part of the process, allowing USCIS to confirm the information
you have provided, and review all the facts with you present.
10. How to Ask USCIS to Expedite Processing the Age-Out Form I-485 Application
The backlog of Green Card applications for adjustment of status and
applications for immigration visas in consular processing makes
otherwise eligible applicants miss an opportunity to adjust due to
"age-out" issues. Therefore, USCIS haa implemented a policy of allowing
individuals who are about to age-out to have their cases expedited.
The applicants are going to age out must take steps to inform the USCIS
or U.S. overseas consulates, and ask for expedited processing of the
applications. Otherwise, they risk losing the benefit they are seeking.
A child applicant or beneficiary, who is seeking adjustment of status
or applying for immigration visa and who will turn 21 years of age
within the next 20 months, usually must do the following to expedite
their petitions:
* Place a cover sheet on the application that states
in bold lettering "Attn: AGE OUT (Date of Birthday)" by using a bright
color marker. It will make immigration officers or consular officers
aware that it is an "Age Out" case;
* After filing, if the petitioners or beneficiaries
have not heard from the USCIS six months prior to the child's 21st
birthday, please contact the USCIS or U.S. overseas consulate again;
* If they have not received a notice for
fingerprinting and adjustment appointment for the child, the petitioner
or beneficiaries should contact the USCIS 60 days prior to the child's
21st birthday.
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