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Greg Siskind on Immigration Law and Policy

WHAT I THINK THE "PERMANENT" SOLUTION WILL NOT BE

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I've been thinking about this so-called "permanent solution" and the speculation here and elsewhere and I don't think it will be the acceptance of adjustment applications without a priority date because that simply is not permitted under the Immigration and Nationality Act's Section 245(a):

(a)--Status as Person Admitted for Permanent Residence on Application and Eligibility for Immigrant Status



The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification  under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1) or may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

Congress would have to change the law to allow for adjustments to be filed without a priority date being available. They are actually considering such a change as part of the SKIL Act introduced last year and this is something promoted by my friends Gary Endelman and Dinesh Shenoy in articles on the subject.



But that is not to say that there is not a solution that gets close to the same place. Perhaps offering interim benefits like an employment authorization document and advance parole without having the adjustment application filed might be a possibility. I don't believe there is a statutory bar to this, though if others have thoughts, I'd love to hear them.

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Comments

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  1. sahibji's Avatar
    What would happen to thousands of applications that have already been filed....
  2. N S 's Avatar
    Greg,

    There needs to be a visa number available for filing 485. As I understand, EAD & AP are derivative benefits of 485. How can the agency let people file EAD & AP if they do not file 485 in the first place. The reason 485 & AP exist in the first place is because AOS applicants can work and travel freely while the AOS application is pending for years as it has been. If the agency does allow filing EAD & AP today without filing 485 application depending on their own interpretations and implemenatations, How can any one use AC21? AC21 allows AOS applicants to move from another employer with similar job description if 485 has been pending for more than 180 days and 140 is approved. Also, there is no assurance that the agency will be doing the same, this time next year as its pretty much up to their interpretation and implementation. This will how ever put a big lid on the furore right now. Permanent solution?
  3. aristotle at IV's Avatar
    Greg,

    How does EAD help a primary applicant if he/she cannot file I-485, and thus cannot use AC-21 to change jobs?

    If they allow EAD and AP to be filed, it mostly helps the H4 spouse only.

    Thanks for your great work to keep us updated on the developments!

  4. mb's Avatar
    Greg,

    is this spossible?

    -Maybe there is some leeway here for USCIS, they take in I-485 apps, but do not start working on them, thus it will not be treated as filed.
    -But AC-21 may still apply as the I-485 is pending.


  5. Jennifer's Avatar
    I am a British Citizen (professional) on H4 visa. I got all the paperwork ready to send for adjustment of status when I was informed on the 2 July announcement that NO APPLICANT can apply. Mine has been current as my spouse is in EB2 category.
    EAD for now will do for me. Also, I will not need to pay the increased fees.
    I do feel for others and I am sure something good will happen. For now, I have a job offer and I need my EAD !!!
    I hope someone is fighting for people like me.
    Jenny
  6. mb's Avatar
    Greg,

    The law says the status can "be adjusted" IF
    Condition A and
    Condition B and
    Condition C (immigrant visa number immediately vailable upon filing)

    Thus if it is not immediately available upon filing the status CANNOT be adjusted, it has to be in pending status.

    Nowhere does it say that a immigrant visa number is required as a pre-condition to file.
  7. AMP's Avatar
    Greg,

    Another possibility might be USCIS decides to re-capture all the visa's wasted in last few years as pointed out in Ombudsman's annual report last month.

    However, it does not feel like a 'permanent' solution as it will be mostly one-time adjustment.

    I'll wait to hear what comes out of this move...

    Thanks for keeping us updated while traveling.
  8. Dorian Kisch's Avatar
    If they are unable to accept the I485 without a visa number available,I gather that puts those of us with aging out kids in a very unfortunate position?
  9. Legal H1's Avatar
    Good point mb, sounds like one may not be adjusted without a number being available. To my non lawyerly mind, the legislation does not preclude someone from filing!

    That would be a great compromise and satisfy many of us with H4 spouses.
  10. PrayForGC's Avatar
    Greg, Do you know when this will come out. The suspence is killing. Hope they release this today and not keep us guessing over the weekend.
  11. DutchSlacker's Avatar
    They'll have to come up with something better than just giving us EAD and AP. I'm pretty sure AILF would still sue if they don't accept our AOS applications. We'll see.
  12. In Immigration Limbo's Avatar
    Would this work for people with TN status? If you can't adjust your status by filing an I-485, it would still not be possible to renew a TN if you have a I-140 pending. I suppose the AP would allow you to re-enter the country and so you would still be in status somehow. Otherwise this may only be a "permanent solution" for those on H-1 visas.
  13. paskal's Avatar

    mb is right.
    nothing precludes filing an application
    that part comes from the CFR which is USCIS' interpretation of this law. they can change that any time they want to.
  14. Legal and waiting's Avatar
    The statue says one cannot be approved, unless s/he filed when the visa number was available. So, I would guess you would still have to file (or re-file) when the dates are current to get approval. Are they going to have some other stage/petition added, like... petition for a petition for adistment of status? How long will it take until petitions for petitions for petitions are going to get completely out of control???
  15. legal's Avatar
    Greg,
    Even if availability of visa numbers is required by law, I don't think there's a problem to file I-485, because visa numbers are always available throughout the year. USCIS has actually been wasting them for the past few years. If they stop the practice of pre-requesting numbers, then everybody should be able to file I-485 throughout the whole year.
  16. steven's Avatar
    Greg, I disagree. If they only allow EAD and AP to be filed, how about people spent money on med, lawer fee...

    Bottom line is they accept 485.
  17. Akshay's Avatar
    Do you think the news is about Visa # recapture?
    Does it have to go through rulemaking - or since Congress has already approved 140K visas per year, they will just roll it over into one bucket.
  18. AK's Avatar
    Hi Greg
    Considering what is allowed in the law, in my humble opinion the proposed solution may be that folks with an approved I-140 can apply for aN Employment Authorization and Travel Permit.
    Today these derivatives are available only with an approved receipt of the Adjustment of Status I-485.

  19. Jun's Avatar
    Guys, making VB always "Current" will not help those doing consular processing....it will only be taken advantaged of those doing AOS and nothing much will be left for those doing CP....in the spirit of fairness, I disagree with making it always current eventhough I am qualified to do AOS....AOS will eat up future allocation and will result in back-logs and retrogression......

    The current system is working just fine except for this July VB mess...just correct the July VB mess and then proceed as usual...that is, issue August VB...etc...

    That is the PERMANENT SOLUTION!
  20. alex's Avatar
    Yeah, as I always said, the solution will be to accept only applications received on July 2 because those applicants had no chance to read the bulletin update, and they have stronger case in court. For the rest, DHS and DOS believe that they're right to update the bulletin, and have no reason to accept their applications. They believe they can convince a judge that there is no reason to expect the bulletin to be updated only once a month and that everybody after July 2 has been given sufficient notice not to proceed with filing. My lawyers think that DOS and DHS have very strong chances to win the lawsuit on this argument.

    Besides, the number of application after July 2 is so huge that if they're all accepted, it'd result in making all India and China categories unavailable for the next two years -- not a good solution.

    Everything else will require passing new laws.
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