Articles Posted in Adjustment of Status

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The immigration attorneys at Zneimer & Zneimer PC reviewed a noticed the Department of Homeland Security published in the Federal Register that announced the decision of DHS to increase its fees for numerous USCIS applications, effective December 23, 2016.  Even though the notice euphemistically calls the fee increase “adjustment” of fees, the result is a significant fee increase “by a weighted average increase of 21 percent.”  The applications for naturalization will have three levels. The N-400 will increase from from $595 to $640.  DHS will charge no fee to some applicants who have received a waiver or who have served in the military.  DHS will also have a reduced fee of $320 for applicants with family income greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines.  Additionally, USCIS will remove the regulatory provisions that prevent “USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.” The fee increase is substantial and becomes effective on December 23, 2016. This is the first fee adjustment since November 23, 2010.  The new fee must be submitted with all applications “mailed, postmarked, or otherwise filed” on or after December 23, 2016.

Applicants who want to avoid this increase should contact an immigration attorney as soon as possible to ensure that their application is filed before December 23, 2016.

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CalendarA foreign national can file an application to become a permanent resident if the foreign national has an immediately available visa.  A petitioner files an immigrant petition on behalf of a foreign national to establish the foreign national’s eligibility to immigrate to the United States and the US government sets aside an immigrant visa for the foreign national based on the approved immigrant petition.  The immigrant petition can be based on family relationship or on employment, and the filing date of the petition with USCIS determines the “priority date” of the foreign national for purposes of visa availability.

USCIS announced that for the purposes of adjustment of status, it will not be bound by the State Department decision, but it will decide every month which date to use – the “filing date” or the “final action date” from the Visa Bulletin. For the month of October, the USCIS will accept adjustment applications earlier as it will use the October Visa Bulletin “filing date” for all family based categories and for most employment based categories.  People who qualify should file as soon as possible before the November Visa Bulletin as the USCIS may change its mind at that time.

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On September 9, 2015, USCIS announced revised procedures for determining when applicants can file  for Adjustment of Status.  Currently, a person cannot file for adjustment of status until his or her priority date becomes current.  Under the revised guidelines, the USCIS will permit employment-based applicants to file for adjustment of status at an earlier date determined by a cut-off date in the Visa Bulletin on a separate chart.
In coordination with Department of State, the USCIS will monitor the two charts per visa preference category that will be published in the DOS Visa Bulletin:

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

The USCIS will monitor the visa numbers and will include cutoff dates in the Department of State Visa Bulletin Chart.  Each applicant can use the chart to determine whether he or she could apply for adjustment of status.  The October 2015 Visa Bulletin currently shows the two charts.

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immigration jobIn the non precedential decision In re Grace Estrellado, the Board of Immigration Appeals states that alien may not utilize the priority date form her original I-140 petition because it was withdrawn by her prior employer and the USCIS revoked it.

Background

The case involved an alien who had an approved I-140 petition for which the priority date was not current.  She had a prior I-140 petition with January 10, 2006, priority date, but the prior employer had withdrawn the petition, and the USCIS had revoked its approval, following the withdrawal.  Nevertheless, the foreign national argued to the immigration judge that she can use the old January 10, 2006 priority date and apply it to the new I-140, so that she can adjust status right away as the old priority date was current.  The immigration judge determined that because the first I-140 had been withdrawn and the approval revoked, the alien could not use the old priority date for the new petition.  He also denied the alien a continuance because the new priority date was far into the future.

Analysis

The Board of Immigration Appeals, applying de novo standard of review to the legal issues, agreed with the immigration judge that the alien cannot use the old priority date because the first I-140 had been withdrawn.  The foreign national argued that the regulations provide that she could keep the old priority date.  She cited 8 C.F.R. 204.5(e) in support of her proposition.

This regulation reads:
(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

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