Finding Your Place In Line For A 'Green Card'

For many foreign nationals living in the United States waiting to apply for a ‘green card’, a daily routine is to log-on to the U.S. Department of State website to check the status of their ‘priority date’ on the State Department’s ‘Visa Bulletin’.  Those who logged in yesterday were surprised to see the publication of the October 2015 Visa Bulletin with an extra Priority Date table.  But what does it mean? 

It’s a fairly significant new development.

But to grasp its significance, let’s take a step back to look at the big picture.

The U.S. Department of State regulates the issuance of ‘green cards’ based upon the distribution of immigrant visas around the world.  Since the demand for ‘green cards’ by natives of some countries (such as China, Mexico and India) is greater than the demand from other countries, there are not enough immigrant visas to supply the demand from these oversubscribed countries.  Consequently, there is a backlog of ‘green cards’ for these natives.

 Foreign nationals who originate from these countries must therefore ‘stand in line’ to wait to apply for their ‘green card’.  Their place in line is determined by the date the person either filed an immigrant visa petition – or an employer filed a labor certification application on this person’s behalf.  This date is known as a ‘Priority Date’.

Each month the U.S. Department of State publishes a ‘Visa Bulletin’ that charts the Dates of ‘green card’ applications being processed.  If a foreign national’s own ‘Priority Date’ is a date that precedes the ‘Priority Date’ published in the Visa Bulletin, that person is then eligible to file an application for a ‘green card’.  For example, if a foreign national has a ‘Priority Date’ of October 3, 2011, and the Priority Date shown on the Visa Bulletin for that person’s category shows January 1, 2012, then that foreign national may then apply for a ‘green card’.

Until the individual’s Priority Date precedes the Priority Date published in the Visa Bulletin, one could not file an application for a ‘green card’.   Until now…

The October 2015 Visa Bulletin offered a pleasant surprise for many:  a new, second chart known as a ‘Filing Date’ Chart.  Under this new provision, the U.S. Department of State will allow foreign nationals to file a ‘green card’ application based upon a new ‘Filing Date’ – rather than waiting for the date previously referred to simply as the ‘Priority Date’.  For most visa categories, the ‘Filing Date’ is more recent than the older ‘Priority Date’ (which is now also referred to as the ‘Final Action’ Date).

What this means is that the ‘Final Action Date’ is the date that the U.S. Department of State will actually process the ‘green card’ application.  This generally corresponds with the previous ‘Priority Date’ charts to which we were accustomed.  In other words, the U.S. Department of State will still wait until the foreign national’s ‘Priority Date’ is current before making a decision on the application – but the individual may now file the application well beforehand – based upon the new ‘Filing Date’ chart.

 Why is this important?  Because when a foreign national gets to file an Application for a ‘green card’, she may also concurrently file an application for Employment Authorization and Advance Parole (the ability to travel while the ‘green card’ application is pending).  In other words, ‘green card’ applicants from the oversubscribed countries may get some of the benefits that accompany a ‘green card’ application while still waiting in line for their ‘green card’ application to be processed.

So for example, this is how it might work: a foreign national from China in the EB-2 category (professional holding an advanced degree) may have a ‘Priority Date’ of June 12, 2013 based upon a Labor Certification Application filed on her behalf.  The ‘Priority Date’ / (Final Action Date) published in the October 2015 Visa Bulletin shows the Priority Date for that category to be January 1, 2012.  In previous months, this person would have to continue waiting until the Visa Bulletin shows a Priority Date in that category after June 12, 2013, before she could file an application – which may be a year or more away.  However, the new Visa Bulletin now shows a second ‘Filing Date’ chart that shows a date of May 1, 2014.  Since the foreign national’s ‘Priority Date’ precedes this new ‘Filing Date’, she is eligible to go ahead and file the ‘green card’ application.  Even though it still will not be processed until her June 12, 2013 Priority Date becomes current under the ‘Priority Date / Final Action Date, she can nonetheless go ahead and file the application and get Employment Authorization and Advance Parole for a family member(s) while they continue to wait in line for her Priority Date to become current.

The U.S. Department of State also asserts that allowing these foreign nationals to apply ahead of time will allow the State Department to more accurately predict the future availability of immigrant visas that will need to be processed.  Based upon the recent wild fluctuations in the Priority Dates for some of these categories in the past year, this can only be a good thing.

So, at the end of the day, these foreign nationals will still have to wait in line, as before – but at least they get to snack on some fairly significant benefits while standing there.

Thoughts Following the 11^th Annual FBA Immigration Seminar:

The I-601(a) Waiver, DUIs, Tattoos, DACA and Arrabally and Yerrabelly, and My-a-Belly

May 2014

                Earlier this month, May 16-17, 2014, the Federal Bar Association hosted the 11^th Annual Immigration Law Seminar in Memphis, Tennessee. The Seminar kicked off with a presentation rejoicing of the (partial) death of DOMA and the good news this brought for same-sex couples seeking immigration benefits. It closed with a celebratory beverage on Beale Street for most attendees. I opted for a celebratory catfish dinner at a local creole restaurant with some old friends, but have no doubt Beale Street would have been a fabulous option as well.

                The general mood throughout the seminar was a mixture of hope—many practicing attorneys are still optimistic that comprehensive immigration reform is coming—and the sort of nervous energy that only trying to absorb enough information to make your head spin will create. Personally, I found the dense nature of the information being presented to be daunting and invigorating at the same time. As a new attorney, nothing is more encouraging than reviewing skills that are old hat, and as exciting as realizing how much more there is to learn when you are confident that it can be learned.

                The relatively new I-601(a) waiver took center stage for one of the presentations I attended and will be discussed in depth in this post. Issues regarding DUIs (citations for driving under the influence) and tattoos popped up in multiple presentations in a variety of contexts and will also be discussed. This post will end with a discussion of the potentially positive consequences of the recent Arrabally and Yerrabelly decision for DACA (Deferred Action for Childhood Arrivals) recipients who have received Advance Parole. As for the reference in the title to My-a-Belly, suffice it to say My-a-Belly enjoyed some tasty Memphis barbeque at the Memphis in May barbeque festival on the river…no event in Memphis would be complete without it!

                The 601(a) waiver is designed to help individuals who apply for immigrant visas through a qualifying relative, but would be barred from re-entering the US following their visa interview abroad. Unfortunately, prior to this waiver, individuals who would otherwise be eligible for a green card were not obtaining these benefits for fear they would leave the country to complete the process and then be found inadmissible based on their prior unlawful presence. This waiver allows the individual to prove that disallowing them from re-entering would cause extreme hardship to their U.S. relative(s) and grants them a waiver that cures the inadmissibility prior to their departure from the U.S. This removes the uncertainty of applying for a waiver after leaving the country from the equation.

                When this waiver was introduced immigration attorneys rejoiced—this cured a catch 22 too many clients faced! However, the high expectations for this waiver were thwarted by USCIS’s aggressive approach to the adjudication of these waivers. Attorneys at the Seminar estimated the denial rate was as high as 40%--half of which was based on USCIS’s belief there might be other grounds of inadmissibility—i.e. a criminal basis. In fact, nearly all waiver applications that included a DUI were denied on the ‘reason to believe there are other grounds of inadmissibility’ exception and most applications were subjected to boilerplate Requests for Evidence that delayed the process by requesting evidence already submitted. Fortunately, USCIS has decided to re-review previous denial sua sponte and has become more generous with approvals over the last month or so, but this waiver still has not lived up to the expectations many attorneys had at its inception.

                As mentioned, USCIS treated DUIs much more harshly in the 601(a) waiver context than anticipated, but it appears that this is part of a growing trend. In fact, many attorneys at the seminar reported that although DUIs are not considered a crime involving moral turpitude, and generally are not a ground for inadmissibility alone, they are increasingly used as a medical ground for inadmissibility. Individuals who have had a recent DUI may be requested to attend a psychological screening (especially if the process is in Juarez, Mexico), and some have even been required to attend Alcoholics Anonymous on the assumption that having even a single DUI may be indicative of alcoholism or other mental illness.

                Tattoos, often discovered in medical examinations, are also receiving a heightened level of scrutiny. There is a general assumption that tattoos indicate gang affiliations. Therefore, ask your clients about their body art, what it means, and why they have it so that they can be prepared to answer questions associated to these issues at their interviews. In extreme circumstances, be prepared to hire an expert to provide evidence that a tattoo is not gang-related.

                Not all of the reports from the Seminar were negative—one recent case, Arrabelly and Yerrabelly, provides a potential benefit for DACA recipients and others who receive Advance Parole. In the Arrabelly case, a couple seeking benefits received Advance Parole to visit their aging parents and left the country. Unfortunately, they had overstayed their visas and accrued more than one year of unlawful presence, triggering the ten year bar which disallows re-entry. Following an order of removal and an appeal, the BIA held that leaving the U.S. under Advance Parole did not effect a ‘departure’ under the Immigration and Nationality Act that would result in inadmissibility based on their prior, unlawful presence.

By logical extension, this may apply to DACA recipients who travel abroad on Advance Parole and re-enter with inspection—effectively curing problems created by a prior entry without inspection. In response to this notion USCIS has tightened up approvals of Advanced Parole for DACA recipients and it is expected that a future Memorandum interpreting Arrabelly will limit the case to its facts. But, for the moment DACA recipients lucky to receive Advance Parole may want to consider adjusting status, if possible, to avoid the issues any prior entry without inspection will inevitably create.

This year’s Seminar certainly left my colleagues and I with a lot to consider. We have clients who received DACA for whom we are anxious to try to adjust status, and may have future clients with DUIs or tattoos who will benefit from the information gathered at the Seminar related to these issues. I am looking forward to next year’s Seminar and learning more about these complex issues as my practice, and Hunter Smith and Davis’s practice grows in general.