• Advance filing of 485 even when dates are not current - Analysis by Spectator

    I put this thought in merely as a topic of discussion and most definitely not a "I think this will happen" type of post.

    It's always struck me that the VB already contains one class that shows two sets of numbers - The DIVERSITY (DV) IMMIGRANT CATEGORY.

    One set of rank numbers (analogous to the PD for EB) relates to cases that are Current for the VB month and can be approved. The second set of numbers forewarns DV applicants of the rank number that will be Current in the following month's VB.

    What might be pertinent is that (due to the time constraints associated with the DV category), those with a number less than shown for the following month are able to file their I-485 in advance of actually becoming Current. For example, if their rank number was lower than shown in the January VB as becoming Current in the February VB, they could file the I-485 from January 1 onwards, even though it could not be approved until at least February 1.

    I wondered where that system had come from. I haven't been able to find it in either the INA or 8CFR (although it's quite possible I simply did not look in the correct place or missed it). If anyone knows of a reference, I would be grateful for the citation.

    What I did come across was this 2013 USCIS Memo outlining the procedure. Here's an extract:

    To ensure timely notification and encourage timely filing of applications for adjustment of status, approximately 50 to 60 days in advance of actual DV visa availability, DOS, in consultation with USCIS, publishes in its monthly Visa Bulletin a separate “advance notification” of DV rank cut-off numbers. Such advance notification enables persons to file their Form I-485 applications prior to the time a DV visa becomes “immediately available.” The listing of advance notification of DV availability is meant to enable a person to file his or her adjustment application, even though a visa is not yet available.

    This advance notification therefore provides an opportunity for adjustment of status applicants to file their Form I-485 applications earlier than would otherwise be possible, thereby enabling USCIS to begin review of such applications. This in turn affords USCIS additional time to determine an applicant’s eligibility for adjustment of status before the end of the fiscal year.
    It sounds kind of familiar as a wish for EB doesn't it?

    If indeed this system is implemented solely by USCIS Policy Memo with the cooperation of DOS regarding the VB, then it seems entirely possible that such a system could be set up for the EB category. The existing Cut Off Date would remain and a second date would be added where applicants could file an I-485 in advance, but could not be approved until they were current under the "real" COD.

    The real advantage of this approach is that it complies with the current regulation at 8CFR 245.1 (g)(1).

    (g) Availability of immigrant visas under section 245 and priority dates --

    (1) Availability of immigrant visas under section 245.

    An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. A preference immigrant visa is considered available for accepting and processing if the applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in her or her category are current).
    so no additional rule making would be required.

    The other huge advantage is that it creates a disconnect between cases that can be a approved and those that can be filed. Under the current system, the single Cut Off Date both allows new filings AND approvals within the COD. This creates a very difficult balancing act for the Visa Office to ensure approvable demand does not outstrip remaining visas.

    Advance filing would allow a much greater understanding for DOS of upcoming demand from USCIS. It has advantages for practically everybody either in, or administering the system (perhaps other than initial USCIS workload).

    In normal practice, maybe the intention would be to move the "second date" forward incrementally, as with the DV rank number. That wouldn't rule out actually allowing everybody to advance file by setting this "second date" as Current for a short initial period (or even permanently).

    I throw out the above as a potential discussion point and in the hope that someone else can better research how the existing DV Lottery system evolved in the VB. I have a nagging doubt that if it were that easy, it would have happened before.

    As a PS, Pre Registration in the form USCIS has always put forward in proposed rule making agenda would be much more similar to the current CP system and would not have allowed filing of an I-485 at that time. Instead it would have been a two step process, with a pre registration packet being filed in advance of the PD being current under the COD. The actual I-485 would still have only been filed once the Cod was current
    This article was originally published in forum thread: Discussion On The Politics of Immigration Reform (Comprehensive Or Otherwise) started by Pedro Gonzales View original post
    Comments 36 Comments
    1. redwood's Avatar
      redwood -
      Quote Originally Posted by Kanmani View Post
      You would see more lawyers coming out and saying the same thing. They knew nothing and probably know nothing but want to cash in on the free marketing. This was happening at the WH level and ** was working with WH to get these things out.

      All those guys who think this is a PR disaster for ** need to understand we have no choice but **. We can all come to forums and discuss things ad infinitum but with no solutions or even an attempt at a solution. These ** leaders, American citizens and GC holders are working for you and me. The least we can do is to support them morally.

      P.S. : I am a supporter of ** but not an active volunteer.
    1. idiotic's Avatar
      idiotic -
      Please read ** facebook post where they already publicized the partial contents of the report before it is released.
    1. abcx13's Avatar
      abcx13 -
      What did they say?
    1. idiotic's Avatar
      idiotic -
      Quote Originally Posted by abcx13 View Post
      What did they say?
      It seems the post is now deleted. It's basically EAD for approved I-140 (for most)
    1. Spectator's Avatar
      Spectator -
      Someone on Trackitt posted a link to an interesting Greg Siskind blog entry made today http://blog.ilw.com/gregsiskind/2015...rd-applicants/

      Greg is at great pains to say he can't authenticate the document “Authority to Modify Certain Procedures Related to Petitions for Employment-Based Immigrant Visa Petitions”, so please bear that in mind.

      From reading through it, I thought it worth noting some unsaid points that arise form it.

      1. USCIS would amend its regulations regarding the revocation or continued validity of approved I-140 petitions in cases where an employer withdraws the petition or terminates its business. Current regulations make such a revocation by USCIS automatic. The new rule would consider these I-140 petitions to remain valid for a beneficiary when “certain criteria are met.”
      Not much to say. According to the document, the criteria would be that the I-140 was approved for one year and the person was working in a "same or similar job".

      2. USCIS would issue a new rule providing employment authorization to beneficiaries (and their derivative spouses and children) of approved employment-based immigrant visa petitions.
      a) This is not the ability to file I-485 based on an approved I-140. In the article it says:

      The memorandum notes as well that while I-140 beneficiaries would be able to change jobs without fear of losing their underlying immigrant visa petition, most beneficiaries would be unable to adjust status in the US since they would no longer hold non-immigrant status. Consular processing would generally be the route to permanent residency (which, the memorandum notes, may have the side benefit of deterring fraud or misuse of the program).
      Presumably, like AOS applicants, the person would be able to remain in the USA based in a period of "Authorized Stay" by virtue of USCIS policy. Since it is not legal status, those days would count towards the number allowed under 245(k).

      If this were to be true, it would be a major disappointment to many people.

      b) Employment Authorization is mentioned repeatedly, yet Advance Parole is never mentioned.

      Combined with (a) above, this would seem to have the effect of "landlocking" people, with no means to travel outside and return to the USA. To do so, without Advance Parole, it seems they would need to regain a valid non-immigrant status to return.

      It may well be that is was discussed in the rest of the document, but Greg just failed to mention it. I think USCIS do have power to grant Advance Parole by Rule making.


      I encourage people to read the full article and make their own mind up on what it says.

      Finally,I can't stress enough that the document is not authenticated. Here's what Greg says:

      Here’s what I don’t know –
      1. Who this memorandum was written by or directed to. It seemingly is intended for someone in a senior role vetting the implementation of the executive action proposals.

      2. The timing. The memorandum doesn’t mention whether drafting has begun or when a notice of proposed rulemaking may be released. The fact that rulemaking is needed means that we’ll be waiting many months – my guess is about a year – before we actually see this proposal take effect.

      3. Whether other proposals are still in the running including recapturing unused green cards from prior years or not counting derivatives in the green card quotas.

      4. Whether this document is even real. I received this six page document anonymously and while it is very detailed and written in a way that suggests a great deal of inside knowledge about what is happening at the agency, I can’t yet verify its authenticity.
      Even despite the caveats, I still believe it is interesting enough to share. I don't think it represents what people would like to see. It may well be one of a raft of suggestions (the date of the document is not disclosed) and not necessarily what is announced.
    1. gcq's Avatar
      gcq -
      The way I look at EAD for spouses and derivatives is :
      Everything remains same for them. They will have to maintain an H4 visa and status all the time as before. The only addition would be employment authorization through EAD which allows them to work. So the question of not able to adjust status don't arise as they are supposed to maintain the H4 status all the time.

      NB: This is a speculation from my side.
    1. gten20's Avatar
      gten20 -
      ** commented on Gregs blog post
      https://www.facebook.com/***********...17396671659891
      [QUOTE]A member shared this earlier today: http://blog.ilw.com/gregsiskind/2015...rd-applicants/
    1. Spectator's Avatar
      Spectator -
      Quote Originally Posted by gcq View Post
      The way I look at EAD for spouses and derivatives is :
      Everything remains same for them. They will have to maintain an H4 visa and status all the time as before. The only addition would be employment authorization through EAD which allows them to work. So the question of not able to adjust status don't arise as they are supposed to maintain the H4 status all the time.

      NB: This is a speculation from my side.
      gcq,

      Having an EAD is one thing. Actually use it and the status is gone anyway.

      The more I think about it, this must be one action that meshes with others - it doesn't make sense otherwise.
    1. kd2008's Avatar
      kd2008 -
      I cannot believe that how gullible employment based immigrants can be even after repeated false starts. The announcement drama and the the fiasco of no announcement was totally expected. Until illegals get their pound of flesh, this administration will do absolutely nothing for legals. So if there is no expanded DACA/DAPA due to the current court case then there is nothing for us.
    1. qesehmk's Avatar
      qesehmk -
      Politics is part of it. But this administration at least is trying to do something. The gop is opposed to all kinds of immigration. Period.
      Quote Originally Posted by kd2008 View Post
      I cannot believe that how gullible employment based immigrants can be even after repeated false starts. The announcement drama and the the fiasco of no announcement was totally expected. Until illegals get their pound of flesh, this administration will do absolutely nothing for legals. So if there is no expanded DACA/DAPA due to the current court case then there is nothing for us.
    1. nbk1976's Avatar
      nbk1976 -
      So if are illegal, even with the current blockade by the district court, you may not be deported under Obama's executive order, but if you are legal, waiting for over a decade for a GC, if your I-484 is denied, even over a minor technicality, you will be NOIDed and deported as per the law, and DHS will not apply prosecutorial discretion and overlook your presence. Obama's executive order wont protect you.

      How absurd this whole thing is!

      Quote Originally Posted by kd2008 View Post
      I cannot believe that how gullible employment based immigrants can be even after repeated false starts. The announcement drama and the the fiasco of no announcement was totally expected. Until illegals get their pound of flesh, this administration will do absolutely nothing for legals. So if there is no expanded DACA/DAPA due to the current court case then there is nothing for us.
    1. qesehmk's Avatar
      qesehmk -
      All those who have a problem with obama's exec order - try getting anything done with GOP. Bringing in politics muddles things and serves no purpose. If u must bring politics in then at least study eb immigration and enlighten everybody what if at all both parties havedone for eb immigration. Otherwise your views are utter waste and doing disservice to eb immigrants.
    1. kd2008's Avatar
      kd2008 -
      Quote Originally Posted by qesehmk View Post
      All those who have a problem with obama's exec order - try getting anything done with GOP. Bringing in politics muddles things and serves no purpose. If u must bring politics in then at least study eb immigration and enlighten everybody what if at all both parties havedone for eb immigration. Otherwise your views are utter waste and doing disservice to eb immigrants.
      Q, I completely agree with you. Big O is our best bet. At the same time I want folks to be realistic and not get caught up in hoopla of announcements, delays of announcements, rule making blah blah. It is important to have the perspective that until expanded DACA/DAPA are implemented, nothing is to be implemented for the legals at least for GC stuff. Yes, there will plenty of "chirimiri" type things like H-4 EAD, expanded EB1-OR evidence acceptance etc. The only important thing from our perspective is ability to file I-485 once I-140 approved, and if not that then date movements (for which this site is the best predictor bar none).
    1. qesehmk's Avatar
      qesehmk -
      Yes KD. I too think people shouldn't get caught up in hype. Couldn't agree more.

      Even disagreement is fine (rather great!) when we can learn something from each other - because then it doesn't just help you and me - but it helps the readers too.

      Quote Originally Posted by kd2008 View Post
      At the same time I want folks to be realistic and not get caught up in hoopla of announcements, delays of announcements, rule making blah blah. It is important to have the perspective that until expanded DACA/DAPA are implemented, nothing is to be implemented for the legals at least for GC stuff. Yes, there will plenty of "chirimiri" type things like H-4 EAD, expanded EB1-OR evidence acceptance etc. The only important thing from our perspective is ability to file I-485 once I-140 approved...
    1. idiotic's Avatar
      idiotic -
      Quote Originally Posted by qesehmk View Post
      All those who have a problem with obama's exec order - try getting anything done with GOP. Bringing in politics muddles things and serves no purpose. If u must bring politics in then at least study eb immigration and enlighten everybody what if at all both parties havedone for eb immigration. Otherwise your views are utter waste and doing disservice to eb immigrants.
      I disagree GOP won't do anything on immigration if they have their way. They are working to reduce immigration into half.
      http://www.fairus.org/DocServer/GR/F...enda_114th.pdf

      Thanks God things are stalled in Congress.
    1. kd2008's Avatar
      kd2008 -
      Quote Originally Posted by qesehmk View Post
      Yes KD. I too think people shouldn't get caught up in hype. Couldn't agree more.

      Even disagreement is fine (rather great!) when we can learn something from each other - because then it doesn't just help you and me - but it helps the readers too.
      Another case in point ...supposedly there is an event to be held next month in DC for HR 213 or whatever the current flavor is of the bill to remove country quotas....to drum up Republican support for it. This is after the said group has come in favor of Big O's exec order. Tell me which Republican leadership is going to support this effort no matter how sensible the thing you are fighting for is everybody's eyes.

      I appreciate the community building effort and grassroots effort but it is misleading in my eyes to lead people into false belief that such events help one bit in moving the needle or the cause. It does not. Just ask all the groups that have and are fighting for the undocumented. May be I am jaded and cynical but I have also lived in this country over a decade and seen no meaningful change in quotas or the politics. 2 yr EAD ..EB2 before EB3 for spillover etc ...things like that ...not to diminish their value but you get the gist.
    1. redwood's Avatar
      redwood -
      Quote Originally Posted by kd2008 View Post
      May be I am jaded and cynical
      Yes you are.
    1. qesehmk's Avatar
      qesehmk -
      kd - i agree with you on the futility of the effort.

      The reason that effort is futile is because immigration is not just an economic but political and strategic imperative for United States. Advocacy won't help especially when you are NOT addressing the other party's view points!!!

      The only thing that is going to work is a legal challenge to the quota system. The law will have to address your grievance and validate the constitutionality of the country quota system against discrimination laws which clearly say that one can't be discriminated against based on nationality. I have also said previously that not only this is against existing anti-discrimination laws but also perhaps against the constitution which is based upon fundamental American belief that "All men are created equal".

      The moment DOS puts you in a different line based purely on where you were born --- that is discrimination and is against the creed of equality at birth.

      ** -- is full of idiots who are full of themselves. Either they don't understand the game or they are taking immigrant community for a ride.

      My recommendation to EB guys on this forum is - organize and form an organization with the single short term goal of challenging the country quota. Don't have any other goal. Just keep this one simple goal in mind.

      I personally already am through the GC door. Lucky me. It's your fight. Take up the challenge. I am sure you will win. I will help what i can through this forum.

      For one reason or other all other EB groups have eased their pain somehow or other. EB-I (both EB2 and EB3) are left with Katora in their hands. Even with EO - your slavery will continue. **'s agenda - although I wish them well - is not going to make any material difference.

      Quote Originally Posted by kd2008 View Post
      Another case in point ...supposedly there is an event to be held next month in DC for HR 213 or whatever the current flavor is of the bill to remove country quotas....to drum up Republican support for it. This is after the said group has come in favor of Big O's exec order. Tell me which Republican leadership is going to support this effort no matter how sensible the thing you are fighting for is everybody's eyes.

      I appreciate the community building effort and grassroots effort but it is misleading in my eyes to lead people into false belief that such events help one bit in moving the needle or the cause. It does not. Just ask all the groups that have and are fighting for the undocumented. May be I am jaded and cynical but I have also lived in this country over a decade and seen no meaningful change in quotas or the politics. 2 yr EAD ..EB2 before EB3 for spillover etc ...things like that ...not to diminish their value but you get the gist.
    1. abcx13's Avatar
      abcx13 -
      I agree with Q that advocating to remove the country quotas is our best bet. If any forum members are interested in trying to do something, I would like to be a part of the effort. I can volunteer time but will probably be unable to travel to DC for advocacy. PM or post if people are interested in getting something off the ground.