Immigration
October Visa Bulletin Brings Good News for many Green Card Applicants
On Sept. 24, 2020, the U.S. Department of State (DOS) posted the much anticipated October 2020 Visa Bulletin. After some initial confusion caused by U.S. Citizenship and Immigration Services placing the wrong chart in its website, USCIS finally confirmed late in the day that for October 2020, the correct chart to use for employment-based adjustment of status applications is the Dates for Filing chart. This is good news for applicants chargeable to India because the filing dates for EB1 moved forward to Sept. 1, 2020; EB2 to May 15, 2011; and, EB3 to Jan. 1, 2015. This means that applicants who have I-140 Petitions with priority dates earlier than listed are finally able to apply for Adjustments of Status (AOS) if otherwise eligible.
The fact that the EB3 date has advanced much more than the EB2 date is interesting. EB2 beneficiaries with priority dates between May 15, 2011 and Dec. 31, 2014 who want to apply for adjustment in October can still apply but only if their employer would be willing to file a new petition requesting a downgrade of the EB2 petition to EB3 and concurrently file the AOS application with it. Filing the AOS application has many benefits, including the ability to obtain employment authorization and travel documents for themselves and spouses and children. Also, it would bring some comfort knowing that in the event that the employment terminates after the AOS has been pending for 180 days, it would be possible to continue the process with another job in the same or similar occupation. Applicants with children closer to age 21 would need to carefully evaluate whether a downgrade would adversely impact the protection afforded to children under the Child Status Protection Act (CSPA) because eligibility for CSPA protection is based on the final action dates, not filing dates.
Adding to the complications is the fact that on Oct. 2, 2020, some of the forms (such as I-765) change along with the filing fees. As of Sept. 26, USCIS has not published the version which must be used for applications postmarked Oct. 2 or later. USCIS is also known for rejecting applications even for minor errors and it takes several weeks for an applicant to learn about the rejection. For all of these reasons, it is important to seek qualified experienced legal assistance for immigration applications.
More on Public Charge Provisions
We previously explained the changes to the Public Charge provisions. The latest news is that on Sept. 22, USCIS resumed enforcing the provisions, which had to be suspended on July 29, 2020 because of injections issued by federal courts. USCIS stated that it will apply the Public Charge rule to all petitions and applications postmarked on or after Feb. 24, 2020. USCIS has indicated that it will not re-adjudicate any applications or petitions already approved that were filed without required forms, information or evidence. However, for cases that are pending or are filed before Oct. 13, 2020, USCIS may issue RFEs for the necessary forms or evidence. Cases filed after Oct. 13, without the forms, information, or evidence required by the Public Charge rule will be rejected. Form I-944 is the relevant one to be included with applications for Adjustment of Status.
USCIS Extends 60-Day Period for Responses Due
USCIS announced that, in response to the COVID-19 pandemic, it is extending flexibilities previously announced on March 30, 2020, to assist applicants and petitioners who are responding to certain agency requests.
This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 1, 2021, inclusive. USCIS will consider a response to requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. Additionally, USCIS will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before taking any action.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]