Aug 2013 Visa Bulletin Analysis Essay

by Rubina Chuang

Beginning August 1, 2013 through at least August 31, 2013, all foreign nationals who are the spouse or child under 21 years old of a U.S. lawful permanent resident (family-based preference category "F2A") may immediately apply for lawful permanent residence.

What is the Family-Based Preference Category System?

The United States limits how many foreign nationals may legally immigrate to the United States per year. The Immigration and Nationality Act (INA) sets rules and regulations regarding how many visas the U.S. Department of State (DOS) will allocate to each country and, within each country, to each category of immigrant. The categories of immigrants are as follows:

First Preference (F1): Unmarried Sons and Daughters of U.S. Citizens

Second Preference (F2): Spouses and Unmarried Sons and Daughters of a Permanent Resident

F2A: Permanent Residents' spouses and children under 21 years old

F2B; Permanent Residents' sons and daughters who are 21 years old or older

Third Preference (F3): Married Sons and Daughters of U.S. citizens

Fourth Preference (F4): Brothers and Sisters of Adult U.S. citizens

August 2013 Visa Bulletin

Every month, DOS issues a bulletin to update applicants on the availability of immigrant visa numbers. Since there are usually more applications than there are visa numbers per country and per category, the DOS visa bulletin shows applicants approximately how long they must wait before they can receive a visa number. In order to be eligible for a visa number-or, in other words, have a "current" priority date-a visa applicant must have submitted their visa petition before the cutoff date shown on the chart according to their country of origin and preference category. Those whose petitions were filed on or before the cutoff date are considered "current" and may apply for a visa.

The August 2013 chart for family-based immigrant visa numbers is below:

 

All Countries (except those listed)

China-Mainland born

India

Mexico

Philippines

F1

Sept. 01, 2006

Sept. 01, 2006

Sept. 01, 2006

Sept. 01, 1993

Jan. 01, 2001

F2A

Current

Current

Current

Current

Current

F2B

Dec. 1, 2005

Dec. 1, 2005

Dec. 1, 2005

Feb. 01, 1994

Dec. 22, 2002

F3

Dec. 08, 2002

Dec. 08, 2002

Dec. 08, 2002

May 01, 1993

Dec. 01, 1992

F4

June 22, 2001

June 22, 2001

June 22, 2001

Sept. 22, 1996

Jan. 08, 1990

According to the chart, all eligible applicants with petitions filed under the F2A category, permanent residents' spouses and children under 21 years old, may apply for a visa beginning August 1, 2013.

Furthermore, if you are the spouse of a lawful permanent resident, or a child under 21 years old of a permanent resident who does not yet have a visa petition filed, you should submit your visa petition as soon as possible during the month of August 2013 in order to be able to take advantage of the current priority date for F2A and apply for a visa immediately. We do not know yet whether the category will remain current after August 31, 2013, so it is crucial to apply as soon as possible.

Also, if you are the spouse or child under 21 of a permanent resident AND you are eligible for adjustment of status in the United States, meaning your last entry into the United States was a lawful entry or you had a visa petition on file for you on or before April 30, 2001 ("245(i)"), it is to your benefit to file your visa application as soon as possible during the month of August. Even if the F2A category is no longer current after August, by filing in August you will be eligible to receive work authorization while your application remains pending. This will allow you to work legally in the United States until your application for adjustment of status is adjudicated.

**This blog is written for the purpose of providing general information only, and is not legal advice. If you have specific questions about your case, we suggest you call our office to set up a consultation to speak to an attorney.

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In a memorandum dated August 9, 2013, USCIS has released guidance and clarifications pertaining to the options and timelines for Diversity Visa (DV) selectees who choose to process their green card from within the U.S. by filing I-485, Application to Adjust Status.   The memo seeks to provide clarification to those DV selectees who choose to file I-485 from within the US and, specifically, to indicate that I-485 can be filed when the advance notification number becomes current.   This is done to ensure that I-485 applications can be filed earlier in anticipation of a visa number being current by the time the I-485 is ready for adjudication and approval.

Background of the Ways Diversity Visa Selectees Can Obtain Their Green Cards

Many of our readers who are familiar with the DV lottery are aware that there are two ways to process one’s green card — by processing through the National Visa Center (NVC)/U.S. Consulate or by filing with USCIS a Form I-485 from within the U.S. (for those who are physically in the U.S.).     The USCIS memo focuses only on those who elect to file I-485.   By law, DV visas expire at the end of a given fiscal year; accordingly, a DV adjustment applicant’s Form I-485 (including principals and any of their derivatives) must be adjudicated and approved on or before September 30 of the relevant fiscal year.   Recognizing that it often takes several months to process and approve an I-485 application, USCIS and the Department of State (DOS have created a system where DOS announced, in the monthly Visa Bulletin,  “advance notification” numbers in addition to the “normal” visa availability numbers in order to allow I-485 DV selectees to file their I-485s a little bit earlier.

Rationale of the Advance Notification Numbers

To ensure timely notification and encourage timely filing of applications for adjustment of status, approximately 50 to 60 days in advance of actual DV visa availability, DOS, in consultation with USCIS, publishes in its monthly Visa Bulletin a separate “advance notification” of DV rank cut-off numbers. Such advance notification enables persons to file their Form I-485 applications prior to the time a DV visa becomes “immediately available.” The listing of advance notification of DV availability is meant to enable a person to file his or her adjustment application, even though a visa is not yet available.

This advance notification provides an opportunity for DV adjustment of status applicants to file their Form I-485 applications earlier than would otherwise be possible, thereby enabling USCIS to begin review of such applications. This in turn affords USCIS additional time to determine an applicant’s eligibility for adjustment of status before the end of the fiscal year.

Mechanics of the Advance Notification Numbers Listed in each Visa Bulletin
The Department of State publishes its monthly Visa Bulletin on or about the ninth day of each month. Each Visa Bulletin indicates immigrant visa availability for the upcoming month (e.g., November immigrant visa cut-off numbers are published on October 9). For DV purposes, the Visa Bulletin currently includes two monthly allocation charts which provide: (1) DV visa availability for the current Visa Bulletin month; and, (2) advance notification of DV visa availability for the following month.
Availability Section.  When a DV rank cut-off number (from the DV notification letter) is listed in the availability section of the Visa Bulletin, visas will be available in that month for applicants with DV numbers ranked (in randomly selected order by region) below the specified cut-off number.   The listing of the DV rank cut-off number indicates the DV rank number of the first person who is not eligible to adjust his or her status in a particular month.

Advance Notification Section.  The rank cut-off number listed in the advance notification section indicates the DV rank cut-off numbers for the specific month covered by the advance notification. Anyone with a rank number below the listed rank cut-off number in the Visa Bulletin may file an adjustment of status application.

USCIS DV I-485 Case Procedures.   As of January 11, 2012, the USCIS Case Resolution Unit at the Lockbox reviews every DV-related Form I-485 for visa availability at the time of filing by verifying that the applicant’s rank number is lower than the advance notification cut-off number posted in the most recently published DOS monthly Visa Bulletin.   The officer  will confirm at time of final adjudication of the Form I-485 adjustment application (i.e., when all required processing has been completed) that the DV rank cut-off number is lower than the applicable rank cut-off number posted in the DOS’s current Visa Bulletin.  As a last step, the officer must also confirm that a DV visa number is actually available, before he or she may approve the adjustment application by submitting an electronic request for the DV visa – this is when the I-485 gets approved and the green card ordered for physical production.

It is important to note that these guidelines based on “advance notification” do not apply to I-485 DV applications filed for the current fiscal year in September because such applications must be adjudicated by end of September (the end of the fiscal year).     On the other hand, these guidelines do apply to adjustment applications that are filed on the basis of advance notification in the prior year’s September Visa Bulletin for the next fiscal year’s DV numbers.

Conclusion

We hope that these clarifications would help DV selectees who are eligible to apply for I-485 processing of their green card to better understand the I-485 DV processing option and to take advantage of the opportunity to file their I-485 little bit earlier to ensure that their I-485 application can be approved faster and before the end of the applicable fiscal year on September 30th.     Our office is ready and available to assist in this kind of situations.     We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments.

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