Today, the U.S. Citizenship and Immigration Services (“USCIS”) posted its Adjustment of Status Filing Charts for October 2016, almost two weeks after the Department of State (“DOS”) published the October Visa Bulletin.
USCIS announced that Chart B – Date for Filing may be used for both family-sponsored and employment-based petitions to determine if an applicant may file an adjustment of status application in the U.S.
Regional center (and certain SR-religious workers) need reauthorization.
However, the announcement clarifies that Expiring Employment Visa Categories, such as Regional Center EB-5 I-526 petitions (I5 and R5) as well as certain special religious workers (SR – mainly non-ordained), must use Chart A – Final Action Date to determine if they are eligible to file an adjustment. USCIS does not have legal authority to accept or approve adjustment of status cases after September 30, 2016 if these programs are not reauthorized.
USCIS further explains that if Congress extends the EB-5 program, it will update this announcement and begin accepting adjustments under these categories.
Many in the industry expect a short, clean extension of the EB-5 Regional Center program as part of the “must pass” Continuing Resolution that is vital to keeping the U.S. government funded. Although the program has not yet been officially reauthorized this is expected within the next 10 days. The Wall Street Journal reported that, “Congress on Tuesday appeared to be ready to give it a short-term extension until after the presidential election.” An extension until December 9, 2016 when the “lame duck” session starts is expected.
As explained, USCIS will be re-issuing instructions authorizing adjustment of status filings based on Chart B Date for Filing just as soon as Congress extends the EB-5 program beyond September 30, 2016, therefore allowing adjustments for Regional Center EB-5 filings for persons with approved petitions from China with priority dates before June 15, 2014 for I5 (Regional Center $500,000) and R5 (Regional Center $1,000,000) filings.
As explained in our previous blog post regarding the October Visa Bulletin, DOS has indicated the Visa Bulletin will update automatically and will not be re-issued. The USCIS approach to re-issue its guidance upon EB-5 re-authorization is logical and provides clear guidance.
The October Visa Bulletin requires stakeholders to read the Visa Bulletin in conjunction with official Congressional action reauthorizing the program. Section D of the Visa Bulletin
If, as expected, Chart B – Date for Filing is reopened for EB-5 Regional Center applicants, those chargeable to Mainland China with I-526 Priority Dates earlier than June 15, 2014, may file Form I-485 to adjust their status, if otherwise eligible. EB-5 Regional Center I5 and R5 applicants from other countries present in the U.S., with approved I-526 petitions, will be able to file Form I-485 up until September 30, 2016 as well as there is no waiting line. However, unless the Regional Center program is extended, only direct EB-5 C5 and T5 cases will be able to file after October 1, 2016.
Since President Obama’s Visa Modernization initiative first led to the creation of Chart B – Date for Filing one year ago, USCIS has only allowed it to be used for the filing of employment based immigrant visa petitions adjustment of status applications for two months in October and November 2015. Since then, applicants have been required to use the earlier Chart A – Final Action Date to file adjustment applications.
The Mainland China cut-off date listed in Chart B – Date for Filing is over three months later than the cut-off date listed in Chart A – Final Action Date (February 22, 2014), some applicants with priority dates earlier than June 15, 2014 should be eligible to file Form I-485 Application to Adjust Status. They must be lawfully present in the U.S. and otherwise eligible to file an adjustment.
Last year, over 600 I-485 EB-5 adjustments were filed in October and November 2015, however this year it is expected that only a few dozen will benefit if USCIS opens EB-5 Chart B filings after reauthorization as only applicants with approved I-526 applications from February 22, 2014 until June 14, 2014, will benefit. While about 2,000 EB-5 petitions were approved during this period, only a few dozen are likely to be in the US and eligible to file adjustments.
So the likely opening of Chart B for EB-5 cases is dampened due to the massive retrogression in Chart B – Date for Filing announced by the DOS in the October Visa Bulletin. For the first 12 months that DOS published Chart B – Date for Filing, the EB-5 cut-off date for China has been set at May 1, 2015. So while Chart B is now available for only the third month for employment filings (and we need Congress to re-authorize the Regional Center program top file RC cases, it’s clear that far fewer Chinese applicants will be able to benefit.
Additionally, this announcement may offer relief to some applicants relying on the Child Status Protection Act (“CSPA”) to freeze their age. Applicants with derivative children around the age of 21 who are in danger of “ageing out” must “seek to acquire” lawful permanent resident status while a visa number is “available” in order to freeze their age under the CSPA. Although the USCIS’s excellent April 2015 guidance memo appears to indicate that filing Form I-485 was acceptable evidence the applicant had “sought to acquire” lawful permanent resident status, USCIS has not yet empirically confirmed that the filing of Form I-485 based on a Chart B – Date for Filing will still satisfy CSPA. Despite this, it appears that for those few who can file an adjustment, there appears to be a solid legal argument favoring their protection, including the fact that CSPA was designed to alleviate ageing out for those impacted by processing delays.
Caution, applicants entering on visitor’s visas who file an adjustment of status application within 30 days of entry need to be ready to show they did not have a pre-conceived intent to adjust status upon entry as a visitor. Presumably those entering before the announcement, could not have even known they might be eligible as USCIS only made the announcement today, September 21, 2016, and even then, there is no guarantee that Congress will reauthorize the program on September 30 to allow them to file an adjustment of status application. Entering as a visitor with intent to file an adjustment of status can be deemed visa fraud which is a permanent bar to immigration benefits.
Persons filing to adjust more than 30 days after entry but less than 60 days have a rebuttable presumption of immigrant intent, and those filing more than 60 days after entry, have a presumption they did not have immigrant intent at the time of entering the U.S. Applicants entering the U.S. on H or L “dual intent” visas have no issue filing to adjust status immediately after entry.
It remains to be seen whether a large number of EB-5 applicants will be able to benefit from this announcement. Some students and a few others should benefit but, unlike the employment based EB-2 and EB-3 preference categories where many applicants wait for their Priority Dates to become current while in the U.S. in H-1B status, most EB-5 applicants are abroad and process through the U.S. Consulates. Historically, only about 10% of all green cards under the EB-5 program are issued through an adjustment of status application.
While we welcome this announcement as a positive step, both USCIS and Congress need to implement a long-term, sustainable solution to the EB-5 waiting line. Unfortunately, while Congress works through the Regional Center program reauthorization and accompanying substantive changes, there are presently no provisions to help Mainland Chinese applicants with approved I-526 petitions who are stuck in an ever increasing waiting line. Those lucky few who are eligible to file Form I-485 in October should begin preparing their adjustment applications now to ensure they take advantage of this opportunity to obtain a work and travel permit while they wait for final adjudication of their case.
Hopefully, USCIS will keep the door open for November, and maybe for December as well but unless the DOS advances the Chart B cut-off date from June 15, 2014, and Congress extends the Regional Center program, very few will benefit.
If you have any questions about this important issue or want to schedule a professional consultation, please contact a Wolfsdorf Rosenthal LLP attorney to discuss your case.
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