Immigration practitioners are reporting a huge surge in visa applications. According to some forecasts, as many as 200,000 applicants are expected to file adjustments in October—similar to the July 2007 “Visa Gate” when all categories were opened for six weeks as part of a settlement. A surge of this magnitude happens only once every decade or two.
Why is this? Among other things, reasons include the fact that at the beginning of the fiscal year on October 1, 2020, many unused family visas over to employment-based visa availability, providing almost double the usual numbers.
The India EB-1, 2, and 3 categories are expected to take the lion’s share, and possibly China too, although the latter is less likely at least in the short term due to other recent movements in visa numbers. Based on past patterns, the employment categories may improve again around February and March 2021.
Since consulates are basically closed due to the COVID-19 pandemic, the only way for these visas to be issued is via adjustment of status. The government has therefore permitted Date for Filing or Chart B filings and have advanced the EB-1, 2, and 3 numbers massively.
The Department of State’s Visa Bulletin for the month of October notes that all of the Final Action and Filing Dates have been advanced at a “very rapid pace” in anticipation of the FY 2021 annual limit being approximately 261,500, “an all-time high. The bulletin notes that pending demand, in the form of adjustment-of-status applications and documentarily qualified immigrant visa applicants, is well below the estimated annual limit of 261,500. “Adjustment of status applications filed early in FY 2021 are most likely to be adjudicated during the upcoming fiscal year,” the bulletin notes.
For October, the Filing Date for an EB-3 from India has advanced nearly five years to January 1, 2015, from February 1, 2010, while the Filing Date for an EB-1 from India advanced to September 1, 2020, from July 1, 2018. The Filing Date for EB-2 India advanced to May 15, 2011, from August 15, 2009. With India EB-3 advancing several years ahead of EB-2, it is estimated that as many as 70,000 petitions will be filed to downgrade from 3rd preference to 2nd preference. Similar China EB-1 has advanced to September 1, 2020 and China EB-2 will be at October 1, 2016, whereas the lower EB-3 is advancing all the way up to June 1, 2018.
U.S. Citizenship and Immigration Services issued simultaneous guidance stating that the Filing Date, rather than the Final Action Date, applies to employment-based I-485 adjustment-of-status applications. USCIS generally only allows allow applicants to use the Filing Date, in the beginning of the fiscal year October and then requires use of the Final Action Date or chart A after a few months. The Filing Date only allows the filing of an I-485 application when permitted by the USCIS. The Final Action Date actually determines when lawful permanent residence is issued. For this reason, only the Final action Date actually freezes the child’s age for the purpose of the Child Status Protection Act or CSPA. Since persons filing adjustments under chart B may not have their case adjudicated for years, it would be advisable to maintain F-1 status or H-1B status if possible, for derivatives who may face aging out. This issue is likely to be litigated but present a dilemma for many.
Do we file now and potentially have our children age out or miss this once in a lifetime opportunity?
WR recommends that adjustment-of-status applicants also file applications for an employment authorization document and advance parole, to enable work and travel in the event of a disruption in the applicant’s current immigration status, ability to obtain a visa, or position. Approximately 6 months after filing, it is expected that the unrestricted work and travel permits should be granted, and most important, the applicants can then port to the “same or similar” or even to self-employment.
For more information register for our adjustment of status webinar this Thursday at 10 a.m. PDT or 1 p.m. EDT.
Contact your WR attorney for advice in specific situations.
- October 2020 Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html
- “When to File Your Adjustment of Status Application for Family-Sponsored or Employment-Based Preference Visas: October 2020,” https://bit.ly/3mU2HCX
- State Department guidance, updated September 17, 2020, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-DV-2020-update.html