Clarity and Strength in Immigration Law

Spouse Visas for Permanent Residents – The August 2013 Visa Bulletin Miracle Part 2

Act Fast to Take Advantage of a Narrow Window of Opportunity to Secure Permanent Residence!

In the previous post, we wrote about August 2013 visa bulletin as it relates to employment-based immigration. In this post, we will take a look at what the August visa bulletin means for family-based applicants.

The major change here is that the F2A category is current across all countries.  The F2A category is for spouses and children (under 21) of US permanent residents (green card holders). Typically there is a backlog of people waiting for a green card to become available for this category. This change in the August visa bulletin means that if you are the spouse or child (under age 21) of a US green card holder, you may be able to file for permanent residence now. If you are the spouse or child under age 21 of a permanent resident, read on for more information:

If Your I-130 Petition Has Been Approved

  • If you are currently in the US in valid immigration status, you may be able to file for permanent residence (I-485) now.
  • If you are not in the US but your I-130 petition has been approved, if you selected consular processing, your case should now continue through the National Visa Center/consular processing process. However, keep in mind that this process can take several months, and it’s possible the priority dates will retrogress before the process is completed. Keep in mind that your priority date must be current for your case to be approved. Therefore it’s important that you keep things moving quickly!

If You Have Not Yet Filed the I-130 Petition

  • If you are currently in the US in valid immigration status and married to a US green card holder, or if you are the child (under 21) of a US green card holder, you may be eligible to file for permanent residence now. Again, this window of opportunity may be very small – it may be that the dates retrogress again in September or later depending on how much demand there is. Therefore, it’s critical to move quickly and take action now!
  • If you are a US permanent resident and your spouse or child is outside the US, you can still begin the process now. The first step is to file the I-130 petition for your relative. It will take USCIS several months for this to be approved. Keep in mind that the entire process may or may not be completed before the priority dates retrogress again.

Frequently Asked Questions – I-130 Petitions for Relatives of Permanent Residents

Q: Who can I file for?

A: As a permanent resident of the US, you may file for your spouse or child under age 21. These family members fall into the F2A category that is current now. You can also file for unmarried sons and daughters (age 21 and older). These family members fall into the F2B category. These dates are not current right now. However, remember that when you file the I-130 petition, your relative secures a place in the “line” of people waiting for permanent residence. The sooner you file, the sooner a green card will be available for him or her.

Q: I am a green card holder and my spouse or child is living overseas. Can I file for him/her?

A: Yes, you can still file for your family member who is overseas. But please keep in mind that the priority dates may retrogress again in the coming months for this category. That means there may be a wait for a green card again. Therefore, it could be that the dates retrogress again before your process is completed. It still may be worth it to file though, depending on your short-term and long-term plans and goals.

Q: My spouse entered the US with a visa and then overstayed. Can I file for him?

A: If the spouse of a US citizen stays beyond the time allotted as shown on the I-94 card, in general it’s possible for that spouse to still apply for permanent residence on the basis of marriage to a US citizen without having to file a waiver. But this is not the case for spouses of green card holders. Note: I am not advising anyone to overstay his/her I-94 (or “visa” in common parlance).

Q: Does this change affect me if I am a US citizen and want to file for my spouse?

A: No. The spouses of US citizens are not subject to the annual visa limitations. That is, assuming they meet the other eligibility criteria, they can file for permanent residence immediately.

Best Practices for Filing the I-485:

  • File soon! Don’t file before August 1 if your date is not current until then, but don’t wait until the 30th to file, either. While we at Sumner Immigration Law strongly believe in the power of positive thinking, our clients also rest easier (as do we!) when we all plan ahead and take action now. Remember, we  may only have the month of August to get the filings in. Even if you have triple-checked the package, sometimes forces of nature prevent a timely filing, and USCIS may or may not care and accept your package.
    • Example: in the summer of 2007, the visa bulletin opened up for all employment-based categories (EB-1, EB-2, EB-3). It was an awesome summer and we filed literally hundreds of I-485 applications. All applications were filed before the last week to file, except for three straggler cases where the applicants just did not get us the documents until literally the last day. We filed for overnight delivery via FedEx. There was a massive thunderstorm in Richmond with 37 lightning strikes to the ground in a 2 hour period. Guess what plane didn’t take off for the FedEx hub due to “Acts of God”? The FedEx plane with our 3 packages. In the end, with the help of AILA and the mercy of USCIS, the packages were accepted but there was absolutely no guarantee.
  • But do not file too soon! Everyone is very excited about the August visa bulletin and busy preparing for the filings. But remember, the August 2013 visa bulletin dates are not effective until August 1. If you file for delivery before then and your date is not yet current, your package will be returned along with your filing fees. That may not sound bad, but it sometimes takes USCIS a few weeks to return improperly filed packages. It could be that you don’t receive the package until September, and it’s possible that then the dates would not be current.
  • Likewise, triple-check your filings. At Sumner Immigration Law, we literally have a three-level review process to avoid the return of packages for small but fatal mistakes. Make sure all proper boxes are checks, the checks are included, signed, written for the correct amounts, etc. One small mistake can cause your filing to be returned, which could cause you to miss this narrow window of opportunity!
  • Beware red flags! Just because you have an approved labor certification and/or I-140 petition does not mean you are eligible. There are a number of grounds of inadmissibility for permanent residence including certain criminal problems, immigration status violation issues and other issues. If you have any doubt regarding your eligibility, consult with an experienced immigration attorney before filing. Otherwise filing can sometimes do more harm than good.

 

Conclusion:

We are very excited for our clients whose cases are positively affected by the August 2013 visa bulletin. If you need assistance in any way with your filing, whether you are a current client or a new client, please contact us immediately at 804-396-3412 or at esumner@sumnerimmigration.com and we will be happy to assist you in attaining your goals, with excellent client service along the way! Please note that although we are located in Richmond, VA, we work with clients from all over the US.