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Carl Shusterman's Immigration Update

New Rule Will Allow Thousands to File I-485s in October

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Thanks to President Obama, a new rule will take effect on October 1, 2015 which will allow thousands of immigrants with backed-up priority dates in the employment-based and family-based categories to apply for adjustment of status (as well as for EADs and Advance Paroles) even though their priority dates are not yet current.


And not only the principal immigrant but their spouses and children will be able to apply for these benefits.


This is, without a doubt, the most positive executive action to benefit the legal immigration system that I have seen in the 40 years that I have been practicing immigration law!


To show how this works, here is an example:


Teresa, a registered nurse, is the wife of an H-1B professional whose employer has yet to sponsor him for permanent residence. That means that Teresa is unable to take advantage of the new rule which allows certain H-4 spouses to apply for EADs.


However, a hospital submitted an I-140 visa petition for Teresa in December 2014. Unfortunately for Teresa, the EB-3 category for Filipino professionals has retrogressed more than 8 years. So, she will not be able to apply for a green card until the year 2023, right?





Wrong! Under the new Obama policy, any Filipino with an EB-3 priority date before January 1, 2015 will be able to apply for adjustment of status starting on October 1, 2015. See the October Visa Bulletin: Dates of Filing for Employment-Based Visa Applications. Teresa and her husband (and any children born abroad who are living lawfully in the U.S.) can submit their applications for adjustment of status (I-485 packets) in October 2015 and obtain their EADs and APs within 90 days.


This rule applies whether the I-140 is approved or is still pending. So waiting past October for the I-140 to be approved is not a good idea. Filing dates, like priority dates, often retrogress.


Professionals from India


A computer programmer from India is in H-1B status. The EB-2 current priority date for India is backed up until May 1, 2005. However, if his priority date is prior to July 1, 2011, he can file an I-485 in October. Things are not nearly as favorable if he is in the EB-3 category, but are still better than before the rule. The EB-3 current priority date for India is backed up until March 8, 2004, but if his priority date is before July 1, 2005, he can file an I-485 in October.


Professionals from China


An H-1B professional from China has an approved I-140 was a priority date in 2013. The current EB-2 priority date for China in October is January 1, 2012. However, if his EB-2 priority date is before May 1, 2014, he can file his I-485 in October. The current EB-3 priority date for China in October is October 15, 2011. Under the new rule, if the professional's priority date is before October 1, 2013, he can submit his I-485 in October.


EB-5 Investors from China


The new rule is a huge benefit for Chinese investor since the EB-5 category for Chinese will be October 8, 2013 in October. Many investors are worried about their children aging out. However, children's ages are frozen once they file for adjustment of status or immigrant visas. Any Chinese person in the EB-5 category with a priority date before May 1, 2015 will be able to apply for a green card in October.

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Updated 09-10-2015 at 01:39 PM by CShusterman

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