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Carl Shusterman's Immigration Update


  1. Another Benefit From Obama's Early AOS Rule

    Starting October 1, 2015, tens of thousands of persons in the Employment-Based (EB) and Family-Based (EB) preference categories will be able to submit applications for Adjustment of Status and receive Employment Authorization Documents (EADs) and Advance Paroles (APs) long before their priority dates become current.

    For many persons whose priority dates have been backlogged for years, this new policy will give them the freedom to change employers without harming their ability to become green card holders.

    This is due to the 180-Day Portability rule in the American Competitiveness in the 21st Century Act (AC-21). This rule allows persons in the EB categories who have approved I-140 visa petitions and whose I-485s have been pending for 180 days or more to change employers if their new employment is in the same or a similar occupation.

    Below is an example of how this would work:

    Vijay, a systems analyst from India, is in the EB-2 category which is backlogged in the October 2015 Visa Bulletin to May 1, 2005 for persons born in India.

    Vijay began working for Employer A in H-1B status in 2008. Employer A filed a PERM application for Vijay in 2009. Both the PERM application and the subsequently filed I-140 have been approved for many years.

    Even though Vijay has worked for Employer A for over 7 years, he is unable to change jobs without jeopardizing his green card application. If he changes jobs before getting his green card, his new employer would have to obtain approvals for both a new PERM application and an I-140 in order for Vijay to retain his 2008 priority date.

    Under the new rules, anyone from India with an EB-2 priority date before July 1, 2011 who is otherwise eligible can apply for adjustment of status in October 2015. Under the 180-day portability rule, in April 2016, they can leave Employer A and take a job with Employer B as long as their new job is in the same or a similar occupation. Employer B will not have to submit a new PERM application or I-140 visa petition for Vijay.

    When Vijay’s priority date becomes current, he can submit his I-485 packet.
    For Vijay and for hundreds of thousands of professionals from around the world who work in the U.S. using temporary working visas, this is a tremendous benefit. It is especially significant for persons born in India, China and the Philippines, all countries with huge EB backlogs.

    More Resources on Obama's New Program

    On October 20, the Senate followed the House of Representatives in voting to protect surviving family members when either the petitioner or the principal beneficiary of a petition dies. President Obama is expected to sign this legislation shortly. We link to the bill (H.R.2892) from our "Immigration Legislation" page at

    Presently, the law provides that when the petitioner or the principal beneficiary dies, so does the petition. Typically, if the beneficiaries are present in the U.S., their applications for adjustment of status are denied and they are placed in removal proceedings.

    There are few options for surviving relatives:

    For example, there is a section of the law which provides that a surviving spouse of a U.S. citizen can self-petition for permanent residence, but only if the marriage occurred at least two years before the petitioner's death.

    There is also a regulation which provides that where the petitioner of a family-based petition dies before the beneficiaries of the petition became permanent residents, the beneficiaries may request that the USCIS reinstate the petition for "humanitarian" reasons.


    Not only does the new law eliminate the infamous "widow penalty", it does so much more!

    When either the petitioner or the principal beneficiary dies in a wide variety of instances, the law acts to protect the surviving family members:

    1) Parents, spouses and children of a U.S. citizen with pending or approved petitions;
    2) Beneficiaries, principal or derivative, of pending or approved family-based petitions;
    3) Beneficiaries, principals or derivative, of pending or approved employment-based petitions;
    4) Beneficiaries, principal or derivative, of pending or approved asylee/refugee relative petitions;
    5) Nonimmigrants entitled to "T" (trafficking victims) or "U" (crime victims) status.

    Since the waiting times for family-based and employment-based preference can range up to between five and 22 years, often petitioners and principal beneficiaries die before the beneficiaries of the petition can obtain permanent residence.

    In explaining how the new law would operate, let's use the following examples:

    EXAMPLE #1 - Family-Based Petition

    Ms. Santos' sister, a citizen of the U.S., petitioned for her over 20 years ago. At that time, her children were four, two and one year of age. Ms. Santos and her husband work as technicians in the U.S. By the time her priority date became current, her children were 24, 22 and 21.

    The INS took two years to approve the visa petition. Since the length of time that the visa petition was pending can be subtracted from the age of her children under the Child Status Protection Act, the "immigration ages" of her children are 22, 20 and 19. Therefore, the youngest two are still considered to be children for purposes of adjustment of status, and the older child must wait for a final resolution of the proper interpretation of CSPA's "automatic conversion" clause.

    Ms. Santos, her husband and her two youngest children all apply for adjustment of status under section 245(i). However, shortly before their interview takes place, her U.S. citizen sister dies. Under current law, Ms. Santos only remedy would be to apply for "humanitarian" reinstatement of her petition from the USCIS, an "iffy" proposition.

    Under the new law, she and her family (except possibly her oldest child) would be protected as "survivors" and would be allowed to continue with their applications for adjustment of status despite the death of her sister.

    Assuming that Ms. Santos and her family members are all eligible for adjustment of status, the only way their applications can be denied is if the USCIS denies the visa petition by determining that its approval "is not in the public interest".

    Also, since Ms. Santos' sister has died, another sponsor for an affidavit of support is needed.

    EXAMPLE #2 - Same Scenario as Above, but Ms. Santos and her Family are Abroad

    If Ms. Santos and her family are abroad on the day that her sister dies, the petition will be revoked by the USCIS. The family's only recourse is to request a reinstatement of the visa petition on "humanitarian" grounds.

    EXAMPLE #3 - Same Scenario as Above, but Ms. Santos, not her Sister, Dies

    If Ms. Santos dies before she and her family are able to adjust status, the new law provides that the petition remains approved unless the USCIS determines that this "is not in the public interest". Her husband and the youngest two children can adjust their status to permanent residents.

    This represents a clear departure from previous laws which would have resulted in the denial of adjustment of status applications for her husband and children, and placing them under removal proceedings.

    Is there any remedy for the family under this scenario if Ms. Santos' family had remained abroad? Unfortunately, the answer to this question is "no".

    EXAMPLE #4 - Employment-Based Petition

    Dr. Kumar is a physician born in India. His wife and daughter reside with him in the U.S. He is in H-1B status. His wife and daughter are in H-4 status. Dr. Kumar completed his medical residency in the U.S. on a J-1 visa. Then, for three years, he worked in a medically-underserved area in H-1B status.

    In 2006, his employer submitted a PERM application on his behalf. It was approved in the Spring of 2007. In July 2007, when all the employment-based numbers became current, Dr. Kumar's employer submitted an EB-2 visa petition on his behalf. Simultaneously, Dr. Kumar, his wife and daughter all applied for adjustment of status. Then his priority date retrogressed.

    In 2009, Dr. Kumar was killed by a drunk driver. Under present law, the visa petition would be revoked. Under the new law, Dr. Kumar's wife and daughter would be permitted to continue with their applications to adjust status. The visa petition could only be revoked if the USCIS determined that its continued approval would not be "in the public interest".


    What follows is some advice for surviving spouses and children under the portion of the new law which relates to widows of U.S. citizens and their children:

    How Can I Benefit from the New Law?

    Under the new law, all surviving spouses can apply for themselves and their children for green cards. The new law eliminates the two-year marriage requirement for self-petitions.

    If you are physically present in the U.S., file an I-360 self-petition together with an I-485 application for adjustment of status.

    If you reside abroad, file an I-360 self-petition and follow the normal immigrant visa procedures.

    In either case, it is incumbent upon you to submit the I-360 within two years of the law's passage, and to demonstrate that the marriage was bona fide. Include wedding photos, proof of joint assets, etc.

    If your spouse dies more than two years after the law's enactment, your I-360 must be submitted within two years of your spouse's death.

    There is no affidavit of support required. However, you must demonstrate to the government that you are not likely to become a public charge.

    Also, if you remarry, you will lose your eligibility.

    How Can My Children Benefit from the New Law?

    Your unmarried children may be included in your I-360 self-petition.

    Remember that although the law defines "children" as unmarried and under 21 years of age, the Child Status Protection Act (CSPA) may allow your child's age to be "frozen". As a general rule, if the I-130 or I-360 petition was submitted prior to your child's 21st birthday, they will continue to be considered a child no matter how old they are when the USCIS decides their application for a green card as long as they remain single.

    For more information about CSPA, see our "Child Status Protection Act FAQ" at


    The new law will provide immigration benefits to "survivors" in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents.

    However, the law is complex, and the extent of its benefits will not be known until after the USCIS and the State Department promulgate regulations, or issue memos, explaining how they plan to implement the new law.

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  3. How to Use Your H-1B to Qualify Under Section 245K
    For the past few months, there have been no green cards available for persons in the employment-based third preference category (EB-3) and long backlogs in the EB-2 category for persons born in India and China.

    So, with few green cards to grant, why has the USCIS been scheduling interviews for persons in these categories?

    The short answer is that just because the USCIS cannot grant most EB-3 and EB-2 applicants green cards, the agency can take advantage of the lull in applications for adjustment of status to deny persons with pending applications.

    How can they do that? Easy!

    Let's say that a person was out-of-status for more than 180 days since their most recent admission to the U.S. Denied! Not qualified for adjustment of status under section 245K of the immigration law.

    The irony is that section 245K was added to the law by Congress in order to make the requirements for adjustment of status less onerous for employment-based applicants. It allows persons to adjust their status to permanent residence as long as they were not engaged in unauthorized employment or were out-of-status for 180 days or more since their most recent admission to the U.S.

    By way of contrast, persons in the family-based preference categories (who are not immediate relatives of U.S. citizens) can not adjust their status if they have engaged in unauthorized employment or been out-of-status AT ANY TIME.

    Let's say that one time during the many years that you were in H-1B status, you lost your job and were out of work for over 180 days. Adjustment of status denied!

    Or maybe you moonlighted at another job without INS's (This was in 2003!)permission. Adjustment of status denied!

    There are endless variations to this sad scenario. But not only will your application for adjustment of status be denied, but the USCIS will be only too eager to issue a notice for you to appear before an Immigration Judge in removal proceedings!

    All those years of working in the U.S. and paying your taxes, all for naught?

    Not so fast!

    If you are still qualified for an H-1B or an L-1 status, there is a solution. Simply leave the U.S. and return using your visa or obtain a new visa Poof! Upon returning to the U.S., you are once again qualified to adjust status under section 245K.


    Because the time that you were out-of-status or engaged in unauthorized employment occurred before your last admission to the U.S., so this does not bar you from immediately re-applying for adjustment of status under section 245K.

    Not bad, am I right?

    A couple of weeks ago, one of our physician clients was denied adjustment of status because he had moonlighted without authorization many years ago, and had never informed us. At the beginning of July, he approached us with apologies and tears in his eyes. Was the future that he had planned in the United States suddenly over?

    Not at all.

    Two weeks later, we obtained an approved H-1B petition for him. He was granted a visa in his country last week, and returned to the U.S. yesterday. Next week, we will resubmit an application for adjustment of status for him under section 245K.

    No harm, no foul.

    Read USCIS' memorandum regarding adjustment of status under section 245K from our "Adjustment of Status" page at

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 03:57 PM by CShusterman

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