Today, December 23, 2016, USCIS posted a large number of new form versions. The forms all have an effective date of today, December 23, 2016, and the website indicates that no other versions of the forms are acceptable, with the exception of Form I-129.  It appears USCIS is continuing to accept prior version of Form I-129. No prior notice of these changes was given, and there was no alert sent to stakeholders today.

Because USCIS elected to deviate from its normal procedures and did not provide notice to stakeholders or provide any grace period during which prior form versions could be submitted, it will pose some challenges to form vendors who will not have time to reprogram the case management software systems and applicants/petitioners who may remain unaware. 

USCIS has indicated to The American Immigration Lawyer’s Association (AILA) that ,while it strongly encourages people to use the new version of the forms, it is aware that there may be older editions of the forms that have already been completed and are in the queue to be mailed and/or filed. USCIS said that it will be flexible and will apply discretion when receipting forms, rather than rejecting them outright.

Affected forms include the following: I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

Please also note that regardless of the form edition submitted, applications and petitions postmarked or filed on or after December 23, 2016, must include the new fees or USCIS will reject the submission.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Confused as to when you may file an I-485 Application for Adjustment of Status?

Beginning with the October 2015 State Department Visa Bulletin additional information appears pertaining to when an intending immigrant may file an application for adjustment of status.  This is specifically relevant to those for whom a visa number is not immediately available, such as those in the EB-2 Category from China or India, or those in the EB-3 Category from China, India, Mexico or the Philippines, among others.

In particular, the Visa Bulletin now includes “Dates for Filing” along with “Application Final Action Dates”.  (Please see my blog post, “October 2015 Visa Bulletin Includes New “Dates for Filing of Visa Applications”; Immigrant Visa Availability Procedures Revised to Permit Possible Earlier Filings” for details.)

The Immigration Service (USCIS) stated from the outset that it “may” (not “will”) use the Dates for Filing Applications to determine when an application for adjustment of status may be filed.  But, what does this mean?  How can one tell when the Immigration Service will permit an I-485 filing based on the Dates for Filing of Applications?  The answer can be found on the Immigration Service’s website at http://www.uscis.gov/visabulletininfo.

Here is a summary of the information:

  • Unless “otherwise stated” on the USCIS website, plan to use the Application Final Action Date.
  • The “otherwise stated” information will appear on the USCIS website in the following charts, which USCIS anticipates updating within a week of the State Department’s release of each months’ Visa Bulletin):
    • Current Month Adjustment of Status Filing Chart, and
    • Next Month Adjustment of Status Filing Chart.

Currently, both of these charts contains a statement noting that USCIS has determined that one may use the Dates for Filing Visa Applications chart.  So, for October 2015 and November 2015, the Dates for Filing Applications may be used.

Of course, these dates were significantly rolled back from the originally announced October 2015 dates. (See my blog post, “October 2015 Visa Bulletin:  Dates for Filing Revised, Rolled Back,” for details.)

Perhaps December’s Dates for Filing Visa Applications will be favorable.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

On November 14, 2013, after much controversy in the past years, the USCIS has finally clarified in its Policy Memorandum (PM-602-0093) that certain individuals who entered the U.S. pursuant to the Visa Waiver Program (VWP) may apply for Adjustment of Status in the United States, including those who violated their 90-day term of stay.

VWP authorizes the nationals of designated countries to enter the US as visitors without a visa for a period of up to 90 days, provided they meet specific requirements for the program. [See the U.S. Department of State’s website for more information on VWP.]

As a condition of entry, VWP entrants are not permitted to change to a different visa status, apply for permanent residency (i.e. a “green card”), and waive the right to contest any action for removal.  An exception to the prohibition against applying for permanent residency for parents, spouses, or unmarried children under the age of 21 sponsored by a U.S. citizen (i.e. immediate relatives).  In recent years, controversy arose where qualifying VWP immediate relatives filed applications after the expiration of their authorized 90-day period.  Because a VWP overstay can be ordered removed (under INA section 217(b) and 8 CFR 217.4(b)) , numerous courts of appeals agree that, generally, a VWP overstay may not contest such a removal action on the basis that he or she has filed for permanent residency.  As a result, immediate relative VWP overstays who applied for permanent residency were routinely being denied and removed from the U.S. in some jurisdictions, but not in others.

In the newly published policy memorandum, USCIS directs that it will adjudicate immediate relative applications filed by VWP entrants, including overstays.  Adjudication is to occur prior to referral to ICE unless: (1) ICE has issued a removal order [If subject to a removal order, USCIS should deny the Form I-485 as a matter of discretion; ICE withdraws or rescinds the removal order, USCIS can then approve the application as appropriate.], (2) The adjustment applicant is under investigation for, has been arrested for (without disposition), or has been convicted of an egregious public safety offense (see USCIS Policy Memo 602-0050), or (3) There are fraud and/or national security issues that require resolution.  Applicants must meet all other requirements for the benefit sought before being able to be granted permanent residency.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.