EB-2 Cut-off Date Announced by Department of State for Worldwide, Mexico, and the Philippines

The Department of State recently posted its July Visa Bulletin indicating that the cut-off date for EB-2 Worldwide, Mexico and the Philippines has regressed to Jan. 1, 2009. The June cut-off date for EB-2 Worldwide, Mexico and the Philippines is "C" for "current." This means that a cut-off date is not specified for these categories through the end of the month.

A visa number is available if the applicant’s priority date is earlier than the cut-off date listed in the Visa Bulletin, or the category has the "C" designation for "current."  A visa number must be available during the month the applicant files Form I-485, Application to Register Permanent Residence or Adjust Status.

The EB-2 category is for members of professions with advanced degrees or persons of exceptional ability. All adjustment of status applicants must file Form I-485 with all the required initial evidence described in the form instructions. A key piece of initial evidence is Form I-693, Medical Examination of Aliens Seeking Adjustment of Status.

USCIS strongly encourages adjustment of status applicants to file their Form I-485 with all required initial evidence, including Form I-693. Failure to provide all required initial evidence may result in adjudication delays for Form I-485 and requests for additional benefits, such as employment authorization. 

USCIS Clarifies Public Confusion Over Provisional Unlawful Presence Waiver

On March 30, 2012, the Department of Homeland Security (DHS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register outlining its plan to reduce the time U.S. citizens are separated from their immediate relatives (spouses, children, parents) while those family members are in the process of obtaining an immigrant visa to become lawful permanent residents of the United States.

Since the announcement, the USCIS became aware of public misperceptions about the rule-making process and when the provisional unlawful presence waiver process will take effect. To address these issues, the USCIS advises:

  The Provisional Unlawful Presence Waiver is NOT in effect. The provisional unlawful presence waiver will not be available to potential applicants until an effective date is specified in the final rule USCIS will publish later this year in the Federal Register. USCIS has published a notice of proposed rulemaking and will consider all comments received as part of that process before publishing a final rule.

  Do not send an application requesting a provisional waiver at this time. USCIS will reject any application requesting a provisional waiver and return the application and any related fees to the applicant. USCIS cannot accept requests for a provisional waiver until the process change takes effect.

  Beware of notarios, or other individuals who are not authorized to practice immigration law, who claim they can help you get a provisional waiver. These individuals also may ask you to pay them money upfront to file an application for a provisional waiver. Avoid such scams.

  If you have been scheduled for your immigrant visa interview with the U.S. Department of State, attend the interview. The Department of State may cancel your immigrant visa registration if you fail to appear for your interview.

Green Card for a Family Member of a U.S. Citizen

U.S. citizens who want their relatives to immigrate to the United States can file a Form I-130, Petition for Alien Relative, for their spouse, children and if the U.S. citizen is at least 21 years old, their parents and brothers or sisters.

“Immediate relatives” of a U.S. citizen, defined as one’s spouse, unmarried children under the age of 21, and parents, always have a visa number immediately available.

If your relationship does not qualify you as an immediate relative of a U.S. citizen, then you may be in what is called a “family preference category.” Eligible relatives include:

               Unmarried sons or daughters over the age of 21

               Married child(ren) of any age

               Brothers and sisters (if the U.S. citizen petitioner is over the age of 21)

Congress has limited the number of relatives who may immigrate under these categories each year so there is usually a waiting period before an immigrant visa number becomes available.

Get a Green Card While Inside the United States

If you are currently in the United States and are one of the specified categories of relatives of a U.S. citizen in a preference category, you may be able to become a permanent resident in two steps.

               Step One – Your U.S. citizen family member (sponsor) must file the Form I-130, Petition for Alien Relative, for you and it must be approved. You must wait for your priority date in your immigrant visa category to become current. Your priority date is the date when the Form I-130 is properly filed (with correct fee and signature) on your behalf by your U.S. citizen relative.

               Step Two – Once the priority date in your visa category is current, you may file for Adjustment of Status with Form I-485, Application to Register Permanent Residence or Adjust Status. Adjustment of Status is the process you go through to become a Permanent Resident.

Get a Green Card While Outside the United States

If you are currently outside the United States and are one of the specified categories of relatives of a U.S. citizen in a preference category, you can become a permanent resident through consular processing. Consular processing is when the U.S. Department of State works to issue a visa on an approved Form I-130 petition when a visa is available. In this process the Department of State will issue you a visa. If approved, you may then travel on the visa and will officially become a permanent resident when admitted at a U.S. port of entry. 

Things to keep in mind:

               The Child Status Protection Act (CSPA). In certain cases, the CSPA may allow you to retain the classification of “child” even if you have reached age 21. Generally, your age is “frozen” as of the date your U.S. citizen parent files Form I-130 for you.

               Getting Married. If you are the unmarried son or daughter of a U.S. citizen and you get married prior to becoming a permanent resident, then you no longer qualify as an “Unmarried Son or Daughter of a U.S. Citizen” and will convert to the category of “Married Son or Daughter of a U.S. Citizen.” This change in categories may result in a significant delay in your immigrant visa becoming available.

Child Status Protection Act

Child Status Protection Act

The Child Status Protection Act (CSPA) amended the Immigration Nationality Act (INA) by changing who qualifies as a child for purposes of immigrant. This permits certain beneficiaries (see the glossary for a definition of the term “beneficiary”) to retain classification as a “child,” even if he or she has reached the age of 21.

Age Out

A “child” is defined as an individual who is unmarried and under the age of 21. Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, VAWA).

How to Qualify for CSPA

Immediate Relative

• If the petition (Form I-130, Petition for Alien Relative) was filed by a U.S. citizen parent for his or her child, the beneficiary’s age “freezes” on the date of filing.
• If the petition (Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiary’s age “freezes” on the date the petitioner naturalized.

Preference Classification for Permanent Residence or Derivative

• CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

Eligibility Criteria

               Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.

               The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.

               The child must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.

Note: Individuals may be eligible to apply for permanent residence under CSPA after 1 year of a visa becoming available if all of the following are true:

               They are a beneficiary of a visa petition that was approved prior to August 6, 2002

               They had not received a final decision on an application for permanent residence based or immigrant visa on that visa petition prior to August 6, 2002

               The visa became available on or after August 7, 2001

               They met all of the other eligibility requirements for CSPA (see above)

Opt-Out

CSPA provides another type of relief referred to as the “opt-out.” This is very limited in scope. If a permanent resident petitioner filed a Form I-130, Petition for Alien Relative, for an unmarried son/daughter and then the petitioner naturalized, the beneficiary can choose to remain in the second preference classification instead of automatically converting to a 1^st preference classification. The reason that this may be beneficial is that sometimes the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. If this situation applies, check the visa bulletin (see link to the right) to see if the opt-out may be helpful. If the beneficiary wants to opt-out, he or she must make a request in writing to USCIS.

Refugee and Asylee Protections

CSPA provides protections for refugee and asylee children who aged out on or after August 6, 2002. The child must remain unmarried to benefit from CSPA protection.

Derivatives

The child’s age is determined based on the time the parent’s Form I-589, Application for Asylum and Withholding of Removal, or Form I-590, Registration for Classification as a Refugee, was filed. After August 6, 2002, as long as the child was unmarried and under 21 at the time either of these forms was filed, and the child was listed on the Form I-589 or I-590, the child will remain a “child” regardless of age and can continue adjustment of status or consular processing on that basis.

Form I-730, Refugee/Asylee Relative Petition, and Section 209 Adjustment

For Forms I-730 or I-485, Application to Register Permanent Residence and Adjust Status, (under Section 209) that were pending on or after August 6, 2002, the child’s age is determined by using the age on the date the principal filed Form I-589 or Form I-590, as long as the child was unmarried and under 21 at that time and remains unmarried.