The Department of State (DOS) has released the August Visa Bulletin and we saw significant forward movement in several categories. For example, India EB1 moved forward 8 mos; China EB1 moved forward 6 mos; and, EB3 all other countries and the Philippines both moved forward almost a full year. The USCIS has announced that they will use the Final Action Date chart for filing I-485’s in Aug. We typically experience retrogression at the end of the fiscal year so do not assume that your date will remain current in Sept but, we encourage you to file your I-485 in August if you are eligible.
The USCIS has announced that it will not honor the Department of State “Dates for Filing” chart contained in the October Visa Bulletin. Instead, they will utilize the “Final Action Date” chart and only accept 485 filings that have a priority date that is current using said chart.
The Department of State (DOS) has recently released the October Visa Bulletin. This is a critical bulletin as it is the first bulletin for the new fiscal year and provides a glimpse into expectation of priority date movement for the entire fiscal year. In spite of speculation to the contrary, the bulletin includes both the final action and dates for filing charts. We expect the USCIS to announce within the next 2 weeks which chart they will use for October I-485 filings. As expected, the temporary retrogression experienced in a number of categories in August and September were resolved and returned to current and/or positive advancement.
Recently, the USCIS began to deny advance parole applications if the person traveled internationally while the AP application was pending. For many years, the USCIS had continued to adjudicate and approve AP’s if you traveled as long as you were on an H or L visa however, that policy has now changed (without any notice). The American Immigration Lawyers Assoc. (AILA) contacted USCIS HQ and they responded with “the denials were proper; the policy is that traveling internationally while an application for advance parole is pending will result in the denial of that application notwithstanding prior practice to the contrary” Please be aware of this change.
On December 1, 2015, the 8th Circuit decided Rajasekaran v. Hazuda, 2015 BL 393183, 8th Cir., No. 14-3623, 12/1/15, and found that Courts can’t review USCIS failure to provide reasons for I-140 revocation, and an I-140 that wasn’t valid to begin with isn’t made valid by an immigrant changing jobs pursuant to the AC21 portability rules. In this case, the beneficiary was a native and citizen of India. In 2006 his then employer, Pacific West Corporation filed an I-140 on his behalf which was approved. Subsequently, the beneficiary and his family filed their I-485 and after waiting the appropriate 180 days he ported jobs, twice. Neither new employer filed an I-140 on his behalf. In 2012, Pacific West closed and the USCIS issued a Notice of Intent to Revoke (NOIR) the I-140 alleging fraud. The employer did not respond to this NOIR and the I-140 was revoked. The beneficiary’s I-485’s based on it were subsequently denied. The beneficiary attempted to argue that he was entitled to challenge the revocation of the I-140 and argued that the USCIS must disclose the specific reasons for the revocation but the Court did not agree.
This decision, coming on the heels of USCIS releasing its memo on Same or Similar job occupational classifications, which was intended to clarify and streamline a beneficiary’s ability to port jobs, may give employees pause when deciding to switch jobs. Notwithstanding this decision, beneficiaries should only be concerned when there may be grounds for a revocation based upon fraud or misrepresentation. The circumstances where these allegations would be present would be pretty rare. This decision is a reminder of the importance of having a properly filed I-140 when seeking all the future benefits based thereon.
And you think your I-485 case has pending too long (with a current priority date) ? Try fourteen (14) years ! In a recent court decision, a Federal judge in Virginia ruled that a mandamus action could proceed against the USCIS for its failure to adjudicate an I-485 application filed in 1999. The Federal judge does not have the authority to require the USCIS to approve the case but, the judge can force the USCIS to make a decision. In a position consistent with its current policy of acting without regard to the law, the USCIS fought to have it declared that a Federal judge may not review any of its actions or in this case, inaction. Basically, the USCIS sought to argue that they answered to no one ! Nice to see a Federal Court tell them otherwise.
How long should it take for the USCIS to process an I-485 application with a current priority date ? Certainly not 4 years, at least not without an explanation. As a result of a Federal mandamus action, a Federal judge ordered a USCIS representative to appear in Court and explain why a 485 case had taken 4 years and was still not adjudicated. The judge took particular umbrage with the USCIS written explanation which the judge stated was “no explanation at all”. Maybe we are finally seeing people willing to stand up to the abuses of the USCIS and take more matters to Federal Court where you will get an opportunity to be heard by a decision maker bound by the law, and not by the whims of this administration’s political policy or as it appears in this case, simple incompetency.
In the January Visa Bulletin released by the DOS, EB2 numbers for India and China moved ahead over nine months making priority dates current for all of 2008 and before. It is interesting to note the Bulletin’s comments on the relatively few new I-485’s that have been filed in recent months in spite of the rapid forward movement of dates. I bet if they go ask anyone who had a vacation planned but then cancelled in the summer of 2007, they could explain it to them.
The USCIS has announced that it will now begin issuing employment authorization documents and advance parole documents on a single card for certain I-485 applicants. The card looks similar to the current employment authorization document (EAD) but includes a text that reads, “Serves as I-512 Advance Parole”. Employers may accept the new card as a List A document when completing the Form I-9, Employment Eligibility Verification.
To receive the single card, an applicant must file for EAD and Advance Parole at the same time. An applicant, who already has an EAD and AP, can apply for the single card only if: (1) the current EAD has less than 120 days validity left; and (2) the Advance Parole has less than 120 days validity date or is for a single entry. Generally the single card will be valid for one or two years, depending upon the availability of an immigrant visa although USCIS retains the discretion to issue it for a shorter period or a longer period depending upon the circumstances of the particular case.