COMMON SUBJECTS

I-601A Provisional Waiver

A Guide to the New I-601A Stateside Waiver of Unlawful Presence for Immediate Relatives of United States Citizens.

On January 2, 2013, the United States Department of Homeland Security announced that illegal immigrants who are immediate relatives of United States Citizens (spouse, child between 17 and 21, or parent of a child over 21) but are unable to apply for a green card from within in the United States because they entered the United States without inspection and would be subject to a 3 or 10-year bar for unlawful presence if they departed the United States to apply for a green card at a United States Consulate in their home country, can submit a Form I-601A Application for a “Provisional Unlawful Presence Waiver” while they are still in the United States. The I-601A is available only to an individual whose sole basis of inadmissibility to the United States would be the 3 or 10-year bar for unlawful presence if they departed the United States. The Immigration Service will accept these applications effective March 4, 2013, from immigrants with approved immediate relative petitions.

The Old Rule

An immigrant who entered the United States without inspection, a term that usually means simply walking across the border illegally, could not apply for a green card in the United States even if they were married to a United States citizen, except under certain rare circumstances. There was a special law first enacted in the 1990s called 245(i) that allowed many illegal immigrants to apply for a green card as long as a family or labor petition was filed for them before a certain deadline. The deadline was eventually set to April 30, 2001, and for that reason, the 245(i) law helps very few immigrants today. So, immigrants who were not eligible to file their green card applications in the United States were required to leave the country and apply for what is known as an “ extreme hardship waiver” at the Consulate. Very few immigrants willingly left the United States and their families to apply for a waiver in their home country because it could take more than a year for the application to be processed and they would be stuck in the home country for 10 years if their waiver application was denied.

The New Rule

Under the new rule, the immigrant must still leave the United States, but they will only have to leave to attend an interview at the consulate in their home country if their extreme hardship waiver is pre-approved. Instead of waiting outside the United States for potentially more than a year for their waiver applications to be decided and risk not being allowed back for 10 years, eligible immigrants can now wait in the United States while they live with their family and eliminate the risk of not being allowed to return to the United States upon departure. This means that the time they will be required to remain outside the United States could be reduced to a couple of weeks or even days.

Who Is Eligible?

To be eligible to apply for the stateside extreme hardship waiver in the U.S. under the new rule, the applicant must:

Be married to a U.S. citizen (Or in some cases, immigrants between 17 and 21 years old who have a U.S. citizen parent, or immigrants who have a U.S. citizen child over 21 years old)
Have an approved I-130 family-based petition
Be present in the U.S. at the time of applying for the waiver
Prove extreme hardship to his or her U.S. citizen spouse or parent

Who is Not Eligible?

Immigrants who have certain criminal convictions
Immigrants who have committed fraud, for example by entering the U.S. with a fake passport through an airport
Immigrants with final deportation or removal orders from an Immigration Court
Immigrants who have already been scheduled for an interview at their consulate based on an approved family petition.

The “Extreme Hardship” Test Applied to Waiver Applications

The legal standard for the I-601A waiver is the same as it is for an I-601 waiver under the old rule, and that is “extreme hardship.” There are decisions in immigration court cases from the Board of Immigration Appeals that define “extreme hardship” as being more than the normal hardship experienced by persons who are separated from their families. This means that simply filling out the form and submitting a brief statement claiming that the immigrant’s spouse and/or parent would suffer extreme hardship is likely to lead to a denial. To maximize the chance of obtaining approval for your waiver, you should provide lengthy affidavits, and present documentation from expert witnesses such as clinical psychologists and doctors supporting your extreme hardship case. If you decide to hire an attorney, Legal memorandums explaining the client’s case in light of applicable law, regulations, and court decisions can be utilized to help the Immigration Service officers decide positively and to understand why the approval should be granted.

Where to File?

Mail your Form I-601A to the Chicago Lockbox facility:

U.S. Postal Service
USCIS
P.O. Box 4599
Chicago, IL 60680

USPS Express Mail/Courier
USCIS
Attn: I-601A
131 S. Dearborn, 3rd Floor
Chicago, IL 60603-5517

What is the Filing Fee?

The fee is $585. If you are younger than 79, you must also pay $85 for biometric services.

If the Department of State has already scheduled my immigrant visa appointment, how do I determine if I am eligible to submit the I-601A to USCIS?

Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the Form I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.

How do I get a copy of my immigrant visa (IV) application processing fee payment receipt?

You must submit proof of payment of your IV fee with your I-601A provisional waiver application to USCIS, attaching a copy of the receipt.

Follow the instructions below to obtain a fee receipt copy:

If the Immigrant Visa Application Fee was:

Paid Online: If you paid the IV fee online through the Consular Electronic Application Center (CEAC) Return to the CEAC site and print a copy of your receipt.
Paid by Mail: If you paid the fee by mail to the NVC, you must request a copy of your receipt from the NVC. To request a copy of your IV fee payment receipt, send an email to NVCI601A@state.gov with the subject line: "Fee Payment Receipt Request” and also include your NVC case number.

Will NVC schedule my IV interview appointment even if I submit an I-601A provisional waiver to USCIS?

No, after you submit your I-601A Provisional Unlawful Presence Waiver Application, USCIS will notify the National Visa Center (NVC) that it received your Provisional Waiver application and NVC will not schedule your immigrant visa interview appointment until USCIS informs NVC of its determination about your I-601A application.

What should I do once USCIS approves my I-601A provisional unlawful presence waiver?

Once USCIS approves your Form I-601A, it will inform NVC of its decision. If NVC has received all required forms and documents for your immigrant visa case, NVC will schedule your immigrant visa interview at the U.S. embassy or consulate you designated and notify you of your interview appointment date. You will then need to depart the United States to attend your immigrant visa interview at the designated location. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect, and the approval may no longer be valid.

What happens if my I-601A is denied?

If your provisional unlawful presence waiver is denied, you still have a couple of options:

Reapply for the Waiver in the U.S. Your application may have been denied for a variety of reasons not having to do with your basic ineligibility for the waiver. For example, you may have failed to provide evidence proving an extreme hardship or you may have made other mistakes in the application. In this case, you may want to work with an experienced attorney to help you complete a new I-601A waiver application.
Leave the Country and Apply for an I-601 Waiver. Another option may be to leave the U.S. and attend your visa interview abroad without any guarantee that you can reenter the U.S. immediately. You can then apply for an I-601 waiver for any reason barring your entry to the U.S.

Will I be Subject to Removal Proceedings if my I-601A Waiver Application is Denied?

The I-601 waiver would allow an individual to know before leaving the U.S. whether they would have to spend three or even ten years abroad before returning to the U.S. I-601 waivers are generally granted to individuals who can prove an extreme hardship on their family should they be forced to remain outside the U.S. While it may seem that many eligible individuals would be excited by the prospect of this waiver, there is also some concern that if an individual applies for the waiver, that person would essentially expose their illegal status in the U.S. triggering removal proceedings.

The standard for Removal Proceedings:

The Department of Homeland Security (DHS) stated it is focused on removing individuals who pose a threat to public safety or national security. This can include individuals who have a criminal history, has committed fraud, or is otherwise considered a threat. However, in its Final Rule, the DHS also emphasized that it does not envision going after I-601A applicants simply because they filed for a waiver and were rejected. Alternatively, if you pose a threat to health or safety, the DHS will prosecute you. It doesn’t matter if the DHS learns of the risk through an I-601A application or any other means.

PLEASE NOTE: THE ABOVE INFORMATION IS GENERAL AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. FOR SPECIFIC INFORMATION PERTAINING TO YOUR CASE, YOU SHOULD CONSULT AN EXPERIENCED IMMIGRATION ATTORNEY.

Green Card by Marriage

Purpose of Form:

For citizens or lawful permanent residents of the United States to establish a relationship to certain alien relatives who wish to immigrate to the United States.
Note: A separate form must be filed for each eligible relative. USCIS processes Form I-130, Petition for Alien Relative, as a visa number becomes available. Filing and approval of an I-130 is only the first step in helping a relative immigrate to the United States. Eligible family members must wait until there is a visa number available before they can apply for an immigrant visa or adjustment of status to a lawful permanent resident.

Where to File:

All petitioners who live in the United States or Canada and who are filing a stand-alone Form I-130 must submit their petitions to the Chicago Lockbox facility. Form I-130 petitions filed with the Chicago Lockbox will be routed to and adjudicated at the appropriate USCIS Service Center. This routing will be based on the petitioner’s place of residence.

Please review the "Direct Filing Addresses for Form I-130, Petition for Alien Relative" link listed under "Related Links" on the upper right corner of this page, or the Form I-130 instructions available through the link at the top of the page, for specific information on where to file your petition.

If Form I-130 is being filed together with Form I-485, Application to Register Permanent Residence or Adjust Status, submit both forms with the correct fees to the USCIS Chicago Lockbox. (See Filing Chart for address.)

E-Notification: If you want to receive an e-mail and/or a text message that your Form I-130 has been accepted at a USCIS Lockbox facility, complete Form G-1145, E-Notification of Application/Petition Acceptance, and clip it to the first page of your application. Form G-1145 can be downloaded through the link above.

Special Instructions:

Important Lockbox Filing Tips:

Read and follow all form instructions for fees, filing location, and eligibility requirements.
If handwriting your application, ensure all entries are neat and legible.
When entering information on your application or petition, be sure to keep your information within the box or space provided.
Use black or blue-black ink only. Do NOT use highlighters or red ink on your application as they may make your materials undetectable when scanned.
Ensure that you are using the correct edition of the form. The correct edition is always available for FREE download at the top of this page.
Ensure that printed forms do not have the data fields grayed out. Information entered into grayed-out data fields will not be detected by the machine scanners.
Ensure that you provide all required supporting documentation and evidence. Ensure that the supporting documents written in a language other than English are accompanied by an English translation.
Be sure to sign your application.
Be sure that you mail all pages of the application.
If you must change your form, we recommend that you begin with a new form, rather than trying to white out information. Our scanners may see through the white correction tape or fluid and make your form incorrect, possibly leading to processing delays or rejection. Fees.
Be sure to enclose the correct fees. Checks must be made payable to the U.S. Department of Homeland Security. Read the form instructions for complete details. We suggest that you use a separate check or money order for each application in the package and biometric fees. If a single check is submitted for multiple applications and one of the applications must be rejected, then all applications will be rejected. The Lockbox can not accept overpayment and make partial refunds.

Note that the requirement for biometrics fees varies depending on your age and the benefit for which you are applying. Ensure the biometric fees submitted are correct based on age and benefit.

Customer Service

If your form is rejected and you don't understand our explanation or disagree with that determination, please write to Lockboxsupport@dhs.gov before you re-file. We will respond quickly to your concern. Please include the form type, receipt number(s), and the applicant's name and mailing address in your inquiries. We specifically ask that Alien Numbers (A-numbers) NOT be included in email, as email is not a secure means of communication.
Lockboxsupport@dhs.gov can answer questions regarding applications and petitions that are pending acceptance or rejection at the Lockbox, and those which have been rejected. Once your application has been accepted, the Lockbox has no information on the adjudication status. After your application or petition has been accepted by the Lockbox, if you have questions about the status of your pending application or petition, contact USCIS Customer Service at (800) 375-5283 or visit our website, www.uscis.gov, and use the InfoPass system to make an appointment at your local USCIS office.
Requests to withdraw an application or petition must be addressed to the office adjudicating your application or petition.
Requests to send files to a different office must be made to the office holding your file. Call USCIS Customer Service at (800) 375-5283 to determine where your inquiry should be sent.
The Lockbox does not process refunds. Information about refunds can be found by visiting our website and typing Refund Request in the Search box in the upper right-hand corner of the homepage.

Deferred Action for Childhood Arrivals (DACA)

On June 15, 2012, President Obama signed a memo calling for deferred action for certain undocumented young people who came to the U.S. as children and have pursued education or military service here. Applications under the program which is called Deferred Action for Childhood Arrivals (“DACA”) begin on August 15, 2012.

We put together the following FAQ to help answer questions about what this all means, who is eligible, and what eligible youth can do next. Please remember this is general information, we always recommend that you consult with an immigration attorney regarding your case.

What does “deferred action” mean?

Deferred action is a discretionary grant of relief by DHS. It can be granted to individuals who are in removal proceedings, who have final orders of removal, or who have never been in removal proceedings. Individuals who have deferred action status can apply for employment authorization and are in the U.S. under color of law. However, there is no direct path from deferred action to lawful permanent residence or citizenship and it can be revoked at any time.

Who is eligible for DACA relief?

Individuals who meet the following criteria can apply for deferred action for childhood arrivals:

are under 31 years of age as of June 15, 2012
came to the U.S. while under the age of 16
have continuously resided in the U.S. from June 15, 2007 to the present. (For purposes of calculating these five years, brief and innocent absences from the United States for humanitarian reasons will not be included)
entered the U.S. without inspection before June 15, 2012, or individuals whose lawful immigration status expired as of June 15, 2012
were physically present in the United States on June 15, 2012, and at the time of requesting consideration of deferred action with USCIS
are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces
have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors and do not pose a threat to national security or public safety.

Applicants will have to provide documentary evidence of the above criteria. In addition, every applicant must complete and pass a biographic and biometric background check.

What is a significant misdemeanor?

DHS will deem as “significant” any misdemeanor involving any of the following, regardless of the sentence imposed:

burglary
domestic violence
sexual abuse or exploitation
unlawful possession of firearms
driving under the influence
or drug distribution or trafficking.

In addition, any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held under an immigration detainer, will be deemed a significant misdemeanor.

How old do I have to be to apply for deferred action?

In general, you must be at least 15 years of age at the time you apply. The exception to this rule is if you are in removal proceedings, have a final order of removal, or have an order of voluntary departure, then you can seek DACA even if you are below the age of 15.

If you were 31 years of age or older as of June 15, 2012, you are not eligible for DACA.

I am not currently in school but would like to re-enroll in high school. Could I qualify?

Yes, to be considered “currently in school” USCIS will look at whether you are enrolled at the time you submit your application.

What types of schools qualify under the DACA program?

Note, that you may be eligible even if you are enrolled in a program to obtain a GED or if you are enrolled in vocational school. The following information is pasted directly from the USCIS website:

To be considered “currently in school” under the guidelines, you must be enrolled in:

a public or private elementary school, junior high or middle school, high school, or secondary school
an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement
or an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.

Will a brief interruption in the requirement to be in the U.S. continuously from June 15, 2007, to July 15, 2012 affect my eligibility for deferred action?

For purposes of calculating these five years, absences from the U.S. that are brief, casual, and innocent will not be included. Absences will be considered to be brief, casual, and innocent if:

it was before August 15, 2012
it was short and reasonably calculated to accomplish the purpose of the absence
it was not because of an order of exclusion, deportation, or removal
it was not because of an order of voluntary departure, or an administrative grant of voluntary departure before an applicant was placed in removal expulsion, deportation, or removal proceedings
the purpose of the absence, or an applicant’s actions while outside of the U.S., were not contrary to law.

Where and how do I apply for deferred action?

All applications for deferred action will be submitted directly to a USCIS lockbox on the new DACA form. Even if you are in removal proceedings or have been ordered removed, the application still goes to USCIS. If you are detained, then you should alert your detention officer that you want to apply.

What forms will I need to submit?

You must submit the following forms or your application will be returned to you:
Form I-821D Consideration of Deferred Action for Childhood Arrivals
Form I-765 Application for Employment Authorization Document
Form I-765 WS –EAD economic need supplement form
$465 fee
Additionally, you will need to submit documentary evidence that you meet all of the criteria to qualify for deferred action (age; entry date; continuous presence; educational or military documentation; etc.)

How much does it cost to seek DACA?

The total fee for the application (including an application for an Employment Authorization Document and background check) will be $465. In other words, the deferred application form itself is free but you must apply for and submit fees for the employment authorization document application and the biometrics fee.

What if I can’t pay the fees?

There will be no fee waiver available for DACA. However, there will be a fee exemption under very limited circumstances for individuals who are in foster care, are disabled, or have medical care-related debt and whose income is below 150% of the poverty level.

There may, in the future, be some limited grant money available from LGBT funders, for those who cannot afford the fees. Watch this space for more information in the future.

If I am granted deferred action, will I be entitled to work?

Every individual who is granted deferred action will be lawfully permitted to work. To be permitted to work, you must include an application for an Employment Authorization Document (EAD) in your application, which, when granted, will be valid for a period of two years and may be renewed. You must wait until the EAD is issued before accepting employment.

If I am granted deferred action, does that mean I have acquired legal status?

The grant of deferred action does not grant legal status to an applicant. In addition, it does not cure such applicant’s previous periods of unlawful presence. However, an applicant who is granted deferred action will not be deemed to be accruing unlawful presence in the U.S. during the period when deferred action is in effect.

If I am granted deferred action can I travel outside the United States?

You can only travel outside the U.S. if you apply for, pay the fee ($360), and receive advanced parole after being granted deferred action and before traveling. Generally advanced parole is only granted for humanitarian reasons, educational, or employment reasons. If you leave the U.S. without advanced parole being granted or before a decision has been made on your deferred action application, you will not be permitted back into the United States.

If my application for deferred action is denied, can I file an appeal?

No. A denial of an application for deferred action cannot be appealed though you could file again (and pay the fee again.)

Is there any risk in applying for deferred action?

Yes, you should only apply after consulting with a qualified attorney. If you are here unlawfully and USCIS or ICE finds that you do not meet the criteria for deferred action, you may be placed in removal proceedings. Additionally, even if you are granted deferred action, the status is completely discretionary and can be revoked in the future.

Is the passing of the DREAM Act still necessary?

Yes. Deferred action is only a temporary measure and is not intended to, and does not grant, legal status to the individuals that the DREAM Act seeks to benefit. Given that only Congress can confer the right to legal permanent resident status or citizenship, we must continue to work towards the passage of the DREAM Act.

How can I get more information?

As we learn more from USCIS we will post more information here. If you have specific questions about whether you qualify, please use the Contact Us page on our website to submit your question. There is also useful information on the USCIS site.

PLEASE NOTE: THE ABOVE INFORMATION IS GENERAL AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. FOR SPECIFIC INFORMATION PERTAINING TO YOUR CASE, YOU SHOULD CONSULT AN EXPERIENCED IMMIGRATION ATTORNEY.

I-485 Adjustment of Status

Since a lot of Hispanics are going to file I-485 applications in the coming months, we decided to write an article on how to file an I-485 application and also explain the process AFTER filing I-485 applications.

Did you know that in the EB category, only employers can file PERM and I-140 applications? However I-485 application can be filed either by YOU or your employer.

If your case is simple, we recommend filing the I-485 application yourself. You can save anywhere from $1000 to $5000 or more in lawyers fees. If your case is not straightforward, then it is highly recommended to use a lawyer to review your case and help you file the I-485 applications.

Important Note: If you are outside the US, do not file an I-485 application. You would have to go for consular processing.

Please see the below documents for filing I-485 application(s):

Documents Needed: Always send a photocopy of documents mentioned below, unless specifically mentioned that originals should be sent.

I-485 form (new edition coming soon). Remember to always use black ink, and fill all sections (use N/A if applicable). Remember to date and sign the form.
Form I-485A - ONLY if you are applying under status 245(i). See Filing Instructions. Fees are an additional $1000
Filing Fees (see section below)
Form G-325A - Biographic Information Sheet only for applicants between 14 and 79 years of age
Evidence of eligibility:
1. EB category: I-140 Approval notice (or I-140 pending notice if PD is current)
2. FB category: I-130 Approval notice (or I-130 pending notice if PD is current)
3. K1 Fiance: Fiance petition approval notice + marriage certificate + Form I -94
4. Asylum: Copy Of letter or Form I-94 that shows the date asylum was granted.
Criminal History (if applicable): Please see page 3 of the I-485 instruction document.
Copy of birth certificate
Copy of passport page with nonimmigrant visa(s)
Two identical recent passport color photos
Form I-693 Medical Examination (signed and sealed by USCIS designated physician)
Affidavit of Support OR Employment Letter
1. EB Category: Employment Letter - Submit a letter on the letterhead of the petitioning employer confirming job availability and the salary to be paid.
2. FB Category: Affidavit of Support: Submit Form I-864
Form G-28 - ONLY if an attorney is representing your case.
Form I-765 - EAD Card for working - This is optional but highly recommended
Form I-131 - Advance Parole (AP) Card for traveling - This is optional but highly recommended
Form I-134 - Affidavit of Support, if you file as a derivative, (this applies when husband, wife, and children are applying at the same time). If the spouse or child resides outside the US, the primary applicant should file form I-824.
Form G-1145 - To receive a text message or email notification. This form is optional
Latest I-94 card (copies of both sides), if applicable.
Marriage certificate (if applicable) 19. All I-797 forms - Notice Of Action received/approval of I-130/I-140 applications - optional

If you are filing forms I-765 and I-131, then the total number of photos would be six (instead of just two for I-485).

Optional documents (recommended by some law firms) photocopies only:

Tax returns for the previous two years
W-2 forms for the previous two years
Two recent pay stubs
Degree certificates
All previous EAD's including student practical training
All I-20 forms
All pages of the passport

Filing Fees (per person) for I-485 Form:

Age: 14 to 79 years: $985 + $85 (biometric fees) = $1070
Age: Below 14 years: $635 (only when submitted with parents application, else $985)
Age: 79 years or more: $985 only
No fees if filing under the Refugee status.

How to Pay: Either with a Check or Money Order. You can submit just one (or more) Checks/Money Order. Make the check or money order payable to "The U.S. Department of Homeland Security". Type this in FULL.

Note 1: USCIS is planning to change the I-485 form soon (though it will continue to accept the current form for a while).
Note 2: Always send legible photocopies for all supporting documents - unless specifically stated that original documents are required.
Note 3: Any document containing a foreign language shall be accompanied by a full English language translation which the translator has certified as complete and accurate. The translator must also certify he or she is competent to translate from the foreign language into English
Note 4: Some forms may have their own (separate) filing fees. Some forms may require additional documents (e.g. EAD/AP form - each requires 2 photos). Always be truthful when filling out all forms.
Note 5: Always remember to (a) use black ink when filling the form(s) (b) type or PRINT words (c) sign and date all the forms.
Note 6: Remember to check all forms for any errors
Note 7: Remember to create a similar application for spouses/children (photos, EAD/AP, birth certificate, etc). Put each application in a separate envelope and then put all these envelopes into one big envelope for mailing.

Important Note: Always see the LATEST I-485 filing instruction document to see what the current requirements are for filing an I-485 application. The list mentioned above can change anytime.

What if the applicant received an RFE after filing I-485?

RFE stands for Request For Evidence. It means either (a) you did not submit a document needed by USCIS or (b) the document you submitted is old/outdated. Once you get the RFE notice details, just send the correct documents to USCIS to process them. RFE typically has a time limit - so make sure you respond quickly.

How long does USCIS take to process RFE?

USCIS typically takes 7-10 days to process the RFE response after they receive it.

Where should the I-485 application be sent/mailed to?

The location to send the I-485 application depends on the type and eligibility of the I-485 application. It also depends on which state you live in and whether you are using regular mail or express mail to send applications to USCIS. Please see pages 5 to 8 of the I-485 filing instruction document for complete details.

When should the I-485 application be mailed?

If your PD becomes current in the July 2013 visa bulletin, then make sure that your application does not reach USCIS before July 1, 2013. If USCIS receives it before that date, they may reject it and return it to you (which could take 30-45 days). Make sure you or your lawyer (or their new assistant) do not send the application before the PD becomes current. In rare cases, they have accepted applications before the PD is current.

Tip: If your PD is current in July VB, you can send it anytime between July 1 and July 31. If your PD is still current in Aug and Sept VB, you can send it anytime between July 1 and Sept 30. All this means is that you can send I-485 as long as PD is current. You do not have to rush to send it on the very first day (or month) when the PD becomes current.

How long does I-485 processing take?

Currently, the average I-485 processing time is 4 months in NSC and 8 months in TSC. So each case could take the same, shorter or longer than that.

How does USCIS process the I-485 application?

USCIS goes by the receipt date of the I-485 application to process it. They do not go by PD. This does not mean that applicant A whose receipt date is earlier than applicant B will be approved earlier. There are many checks made by USCIS, FBI, etc which could take longer for some applicants. Each application could have a different processing time.

Also if the I-485 application is preadjudicated then USCIS will allot visas based on PD (and not the I-485 receipt date).

Tip: Preadjudication means that USCIS has finished processing the I-485 application and is waiting for visa numbers (date to move forward in visa bulletin so that visa number is available). Preadjudicated cases appear in monthly demand data.

Can I be notified when USCIS takes any action on the I-485 case?

Yes, there are three ways: (1) Submit form G-1145 mentioned above to get notification by text or email message (2) Sign up to the USCIS case status website to get text/email notification (3) You can add your case to GC Tracker and check your status from there with just one click.

What happens after the I-485 application is filed?

The typical steps are listed below:

You wait for Receipt Notices - it could take around 1-4 weeks
Then you wait for FP (Fingerprint) notice - it could take around 3-4 weeks. If the nearest service center for FP is busy, then it could take 2+ months also. Once you get the FP notice, it will have the location and date/time that you should appear to have all ten fingerprints taken. You NEED this FP notice before you can go for fingerprinting. If you go before/after the date listed they might ask you to come later or get a new date.
You wait for EAD/AP approval notices - it could take around 3 months.
Then finally you wait for any updates on your I-485 application 5) Either you will get RFE where USCIS asks for additional documents/proof
Or last stage is you get I-485 approval/rejection notice/alert -- should get in 4-8 months (if your PD remains current).
Some family-based I-485 applications (for example F2A category) will be called for interview.

Receipts/Notices in most steps above are sent to you and the lawyer (assuming you used a lawyer). In the case of RFE, only a lawyer will get the notice (if you did not use a lawyer, it will come directly to you). The processing time listed for each step above is approximate. It could take longer or shorter time than that.

Who does USCIS ask for an interview?

Some family-based applicants (such as the F2A category or petitioner sponsoring spouse) are required to come for an in-person interview. Also, USCIS may randomly decide to call other applicants (EB or other categories) for interviews. The interview may also be scheduled if a name check (or some other background check) triggered additional verification required to check from USCIS.

What about applicants who submitted I-485 in 2007?

If you submitted your I-485 more than a year back, then most likely your case would have been adjudicated. This means that you do not have to do anything else when the PD becomes current. USCIS will either (a) issue RFE (b) reject application or (c) approve application. If you are impatient, you can always open a service request by calling USCIS national phone number.

Can the applicant change employer after filing I-485?

If the I-485 case has been pending for over 180 days then using the AC-21 rule, you can switch employer. You can notify USCIS that you are switching employers; though some people decide not to do this (since USCIS could issue an RFE and request more details such as new salary, job title, location, etc).

PLEASE NOTE: THE ABOVE INFORMATION IS GENERAL AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. FOR SPECIFIC INFORMATION ABOUT YOUR CASE, YOU SHOULD CONSULT AN EXPERIENCED IMMIGRATION ATTORNEY.

Section 245(i)

What is Section 245(i)?

§245 of the immigration law allows persons to become permanent residents without leaving the U.S. through a process called adjustment of status. Generally, persons who entered the U.S. without being inspected by a USCIS officer, who have ever been unlawfully employed in the U.S., or who failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S. (There are certain exceptions to the last two bars for “immediate relatives” of U.S. citizens and for certain EB applicants.)

§245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased §245(i) out of the law on January 14, 1998. However, persons who had already qualified under the law as of that date were “grandfathered” into the benefits of §245(i) for the rest of their lives. The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline could not adjust their status in the U.S., and could not return to their countries to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S. These persons (You may be one of them!) have been in a state of legal limbo since 1998.)

Congress gave a holiday present to hundreds of thousands of potential immigrants on December 15, 2000, when they extended the grandfathering date of §245(i) to April 30, 2001. Not only does this extend the benefits of §245(i) to persons who had labor certifications or visa petitions (I-130, I-140, or I-360) filed on their behalf between 1998 and 2000, but it gives persons over four months AFTER the passage of the law to qualify for the benefits of §245(i).

What must I do to qualify for §245(i)?

A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998, is qualified for the benefits of §245(i). Under the new law, a person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of §245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000).

Does this mean that I must have been lawfully in the US on December 21, 2000?

No, merely that you were present, legally or illegally, in the U.S. on that date.

How do I qualify for the benefits of §245(i)?

You must have had either an employer or a relative submit a labor certification or a visa petition on your behalf before April 30, 2001. The Labor Department or the USCIS doesn't need to approve your application or petition by this date, only that it be filed. For example, if your brother, sister, father, mother, adult son or daughter, or your spouse is a citizen, or perhaps even a permanent resident, they needed to have submitted a petition on your behalf, no matter what the waiting time was in that particular category.

U.S. citizens may petition for their spouses, married or unmarried sons and daughters of any age, parents, and brothers and sisters. Permanent residents may petition for their spouses and their unmarried sons and daughters of any age (This includes sons and daughters who are divorced or widowed).

Do I have to adjust my status in the same category that I was petitioned for?

No. Let’s assume that your brother (or your spouse’s brother) has naturalized. The published waiting time for a sibling petition varies from 12 to over 20 years on paper, and the actual waiting time is even longer. Still, you should have had him petitioned for you and your spouse and children immediately. The filing of a simple petition is what makes your whole family eligible for the benefits of §245(i). You are not obligated to wait 12 to 20 years to obtain a green card. If you qualify for a green card through employment, through another relative, or even through the green card lottery, because you are qualified under §245(i), you will be able to adjust for status for permanent residence much more quickly. However, if you adjust your status based on a visa petition that was not the original basis for your being eligible to adjust status under §245(i), you must use your priority date.

If my wife's relative filed a petition for her on or before April 30, 2001, can we both qualify for permanent residence based on a visa petition filed after that date? How about my children? Once they turn 21 years of age, they will not be entitled to any benefits based on this petition, will they?

You and your children are considered to be “derivative beneficiaries” of the petition filed by your wife’s relative on her behalf. This entitles not only your wife but you and your children to the benefits of §245(i). Even your children who “age out” by turning 21, or by marrying, will is still entitled to the benefits of §245(i) if they were “derivative beneficiaries” of a visa petition filed by your wife’s relative on or before April 30, 2001.

Conversely, if you and your wife divorce, not only will you and your children be eligible for the benefits of §245(i), but so will each of your new spouses and children, as long as the new relationships are in place before the time you or your ex-wife adjust status.

An INS Memorandum, dated June 10, 1999, provides excellent guidance in such situations.

What happens if my relative dies? Am I still eligible?

Yes, the USCIS utilizes an “alien-based” interpretation of §245(i). If a visa petition was “approvable when filed”, you are entitled to the benefits of §245(i) even if the application/petition was never approved, was withdrawn, or the petitioner ceases to exist.

Deficient filings because they were submitted without fee, or because they were fraudulent or without any basis in law or fact, are not considered to be “approvable when filed” and confer no benefits under §245(i).

If I qualify for these benefits, leave the U.S., and return at a later time, will I still be entitled to adjust status under 245-I?

Yes. However, if you have been “unlawfully present” (a legal term of art – be sure to consult with an experienced immigration attorney) in the U.S. for 180 days or more, you may be subject to either a three or a ten-year bar to returning to the U.S. If this applies to you, DO NOT TRAVEL OUTSIDE THE U.S. UNTIL YOU BECOME A PERMANENT RESIDENT.

If I qualify for benefits under §245(i), when will my eligibility for being able to adjust my status in the U.S. expire?

Never. Once you qualify for benefits under §245(i), your eligibility never expires. Of course, you must still qualify (through a relative, a job, or the green card lottery) when you apply for adjustment of status. You must be admissible to the U.S. If you have been convicted of a criminal offense, have committed immigration fraud, etc., you may be inadmissible.

PLEASE NOTE: THE ABOVE INFORMATION IS HIGHLY GENERAL AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. FOR SPECIFIC INFORMATION ABOUT YOUR CASE, YOU SHOULD CONSULT AN EXPERIENCED IMMIGRATION ATTORNEY.

U-Visa

I am an illegal alien and I have been the victim of a serious crime. I am afraid to report the crime or to assist the police with their investigation.

As the victim of a serious crime, you may be eligible to apply for a U-Visa. The U-Visa applies to immigrants, including undocumented immigrants, who are the victims of certain serious crimes and who have cooperated with authorities in the prosecution of the perpetrator. An immigrant granted a U-Visa or I-360 Petition will subsequently be given legal status to reside and work in the United States.

Background

In October 2000, Congress created the Victims of Trafficking and Violence Prevention Act (Act). Finally, after seven years of interim rules, the U.S. Citizenship and Immigration Service (USCIS) has published final Regulations on U-Visa, which became effective October 17, 2007. The U-Visa applies to immigrants who are the victims of certain serious crimes and who have cooperated with authorities in the prosecution of the perpetrator.

What is the purpose of a U-Visa?

The law gives law enforcement agencies the ability to investigate and prosecute certain types of criminal cases, including: domestic violence, sexual assault, trafficking of aliens, and other crimes while, at the same time, offering protection to victims of such crimes.

The law also helps law enforcement agencies to assist immigrants who are victims of crime.

What is a U-Visa?

The Act created a U-Visa, which is available to illegal immigrants who have met each of the five points below:

1. Has been the victim of one of the following crimes:

Abduction
Incest
Rape
Abusive Sexual Contact
Involuntary Servitude
Sexual Assault
Blackmail
Kidnapping
Sexual Exploitation
Domestic Violence
Manslaughter
Slave Trade
Extortion
Murder
Torture
False Imprisonment
Obstruction of Justice
Trafficking
Felonious Assault
Peonage
Unlawful Criminal Restraint
Female Genital Mutilation
Perjury
Witness Tampering
Hostage
Prostitution
Attempt, Conspiracy or solicitation to commit any of the above crimes

2. Has suffered substantial physical or mental abuse as a result of having been a victim of one of the above crimes

3. Has useful information concerning the crime which occurred

4. Has helped, or is likely to help, in the investigation or prosecution of the crime

5. The crime committed violated the laws of the United States or occurred in the United States.

How do I apply for a U-Visa?

The immigrant must first obtain a law enforcement certification before filing a Petition for U Nonimmigrant Status (Form I-918). All U-Visas must be filed with Immigration at the Vermont Service Center.

What is a law enforcement certification?

An immigrant who is the victim of one of the listed crimes must obtain a certification from a federal, state, or local law enforcement agency, or a prosecutor, judge, or other authority, that is responsible for the investigation or prosecution of the crime. Other agencies such as Child Protective Services, the Equal Employment Opportunity Commission and the Department of Labor can also issue a certification.

Is there a form for the law enforcement certification?

Yes. The U Nonimmigrant Status Certification (Form I-918, Supplement B) is a USCIS form that must be completed and signed by the agency or authority responsible for the investigation or prosecution.

Can anyone who is employed by the agency or authority responsible for the investigation or prosecution of the qualifying crime complete and sign the Form I-918?

No. The person completing and signing the I-918 must either be (1) the head of the agency; or (2) a supervisor designated by the agency and authorized to issue a certification on behalf of the agency.

Can an immigrant who is now outside the United States but was the victim of a qualifying crime that occurred while the immigrant was in the United States apply for a U-Visa?

Yes. Immigrants, who are victims of a qualifying crime, and their family members, can apply for a U-Visa either from outside the United States, as long as the qualifying crime was committed while the immigrant was in the United States. The immigrant and family members will file for a U-Visa with the U.S. Embassy or Consulate in the immigrant’s country.

Is a family member of a U-Visa applicant also eligible to apply for a U-Visa?

A family member of a U-Visa applicant cannot apply for a U-Visa on his or her behalf. However, the U-Visa applicant can file a petition on behalf of the family member if: (1) the U-Visa applicant is less than 21 years of age the applicant can file for their spouse, children, unmarried siblings under 18, and parents; or (2) the U-Visa applicant is 21 or older the applicant can file for their spouse and the applicant’s children. The applicant must file Form I-918, Supplement A, for their qualifying family members.

Is there a limit on the number of U-Visa Immigration can approve?

Immigration may grant no more than 10,000 U-Visas in any fiscal year (October 1 through September 30). The limit does not apply to spouses, children, parents, and unmarried siblings who are accompanying or following the principal alien victim. If the cap is reached in any fiscal year before all petitions are adjudicated, Immigration will create a waiting list. Applicants placed on the waiting list will be given deferred action (they will be eligible to apply for employment authorization and permitted to travel) until their petitions can be adjudicated after the start of the following fiscal year.

How long can an immigrant have a U-Visa?

U-Visa status cannot exceed four years. After three years an immigrant with U-Visa status can apply for an adjustment of status (green card).

Can an immigrant granted U-Visa status eventually apply for permanent resident status (green card)?

Yes. The immigrant must have been physically present in the U.S. for a continuous period of at least three years since the date of issuance of the U-Visa. In addition, Immigration must determine that the immigrant’s continued presence in the United States should be granted on humanitarian grounds to keep family unity, or is otherwise in the best interest of the public.

Is there a deadline for submitting a U-Visa petition?

There is no deadline for immigrants who are applying for U-Visa relief now. However, there is a deadline of April 14, 2008, for immigrants who have already been granted interim relief to file an application for U-Visa status under the permanent rules.

Are there filing fees for the U-Visa?

No. There is no filing fee for applicants for the U-Visa or qualifying family members. However, applicants and qualifying family members must pay the fingerprinting fee for each person ages 14-79 included with each petition. The fingerprinting fee is currently $80 per person. Petitioners who are financially unable to pay the fingerprinting services fee may apply for a fee waiver.

I was granted interim U-Visa relief before the enactment of the final regulation; do I need to apply now?

Yes. Immigrants granted interim U-Visa relief should complete and file Form I-918 before April 14, 2008. However, an immigrant granted interim relief does not have to file I-918, Supplement B (certification from a qualifying agency).

I am the victim of a crime with a deportation order issued by Immigration. Can I apply for a U-Visa?

Yes. You are still eligible to apply for a U-Visa even if you have a deportation order. Once the U-Visa is approved you will need to file a motion to reopen the deportation order with the Immigration Court. Alternatively, if you are about to be ordered deported you must file a Stay to the deportation.

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