The Priority Date for Adult, Unmarried Children of US Citizens/Permanent Residents who are under 245(i) is now current
Thousands of people living in the United States who have been unable to apply for permanent residence for many years have recently become eligible to apply now that the F2-B and F-1 categories of visa petitions have become current.
This is due in part to Section 245(i) of the Immigration and Nationality Act (INA) which allows certain unauthorized immigrants who are physically present in the United States to apply for lawful permanent resident status even if they had entered the United States without authorization. Under 245(i), such people if otherwise eligible could waive the consequences of a one-time entry without inspection that did not involve fraud and adjust status upon payment of a $1,000 penalty in addition to any other fees due. The set of people who are protected by 245(i) is continually shrinking however, because an applicant must have started the immigration process with a filed family petition on or before April 30, 2001 to enjoy 245(i) protection.
For many years, the spouses and minor children (under 21 years ) of U.S. citizens and permanent residents have been applying under 245(i), but other relatives such as adult children of those same U.S. citizens and permanent residents could not do so.
Why not? Simply because adult children are in different "visa categories" of a lower priority than the categories that apply to spouses and minor children. Persons in those lower priority categories have been required to wait until their "priority date comes current." Everyone with a pending family case has a "priority date" which reflects the date they began their case. The higher priority categories advance faster, which is why applications from 2001 in those categories have been eligible for years while applications from 2001 in lower categories have not.
However, the priority date now being processed is May 1, 2001. Since the cut-off date for receiving 245(i) protection is April 30, 2001, this means that the thousands and thousands of people who scrambled to apply just before the cutoff date for receiving 245(i) protections are now at last able to use that 245(i) protection and complete the process they began more than 20 years ago.
But not all of them, not yet. Specifically, the categories that have advanced to May 1, 2001 as of today (June 2, 2022) are F1 (unmarried adult children of US citizens) and F-2B (adult unmarried children of Lawful Permanent Residents). If you are the adult son or daughter of a U.S. citizen or Lawful Permanent Resident who enjoys 245(i) protection because your case was filed on or before April 30, 2001, USCIS is at last prepared to accept your application for Permanent Residence.
As always however, no one should file immigration papers of any kind without first consulting with a competent attorney well versed in immigration law. Filing for something that you are in any way not qualified for can lead to serious adverse consequences. If you think this development affects you, it would be wise to find out whether you should apply. Note that other categories, including brothers and sisters of US citizens and the married children of US citizens do not yet have their priority date current. Married children of Lawful Permanent Residents are not eligible for a family-based visa at all through that relationship.
A partir de hoy, el 9 de marzo 2021, la respuesta es si.
Hoy el presidente Biden autorizó el TPS (Estatus de Protección Temporal) para los venezolanos. Este estado brinda protección contra la deportación, autorización de trabajo, posible autorización de viaje y posiblemente un camino hacia la residencia permanente (depende de donde vive entre otros factores). Los requisitos incluyen prueba de nacionalidad venezolana, pruebas de estancia a partir del 9 de marzo, 2021, y un récord libre de ciertos delitos y violaciones de la ley de inmigración. Para saber si reune los requisitos, consulte con un abogado.
As of today, March 9, 2021, the answer is yes: President Biden has authorized TPS (Temporary Protected Status) for Venezuelans. This status provides protection from deportation, work authorization, possible travel authorization, and possibly a path toward permanent residence.
Requirements include proof of Venezuelan nationality, proof of continuous residence in the United States since March 9, 2021, and a record free of certain criminal and immigration violations. Consult with an attorney to see if you qualify.
While we have many great expectations for reforms to immigration laws and procedures , it is important to realize that as of today, February 1, 2021, Congress has not yet passed any new laws creating a new path to Permanent Residence. Actions more limited in scale that have taken place include lifting of travel bans against nationals of certain Muslim-majority and African nations, the extension of protection for Liberian nationals until June 30, 2022, and suspension of the Migrant Protection Protocols which require certain asylum seekers to wait in Mexico.
Much has been spoken of a plan to grant status to all persons who have been in the United States without status or at least to holders of DACA and TPS, however no action has been taken on these plans so far. It would not be appropriate to charge for legal services related to any "new" path to permanent residence that it is hoped will come into being under the Biden administration. Hopefully, that will soon change. What you can do at this time, though, is inform yourself about what changes in immigration law would be needed for you to benefit so that you will be ready when and if new opportunities arise.
Cuanto Tiempo Tardara Mi Caso?
Aunque parezca difícil de creer, USCIS no ofrece ninguna forma de verificar el progreso de un caso individual una vez que se haya metido. Las estimaciones del tiempo de procesamiento son extremadamente vagas y poco fiables. Además, nos encontramos en una situación sin precedentes en lo que respecta a la pandemia de COVID-19 y su efecto en los tiempos de procesamiento. El cambio en la administración presidencial también hace que cualquier intento de adivinar el tiempo de procesamiento sea inútil. Por estos motivos, lamentablemente no podemos contestar ninguna pregunta sobre cuánto tiempo tardaremos en llegar al siguiente paso o al final de su caso.
Hay dos cosas que puede hacer, aunque son de uso limitado.
Puede ir a https://egov.uscis.gov/casestatus/landing.do e ingresar el número de recibo de su recibo de USCIS (etiquetado como Formulario I-797). Sin embargo, lo único que hace es confirmar que su caso ha sido recibido y está pendiente. Ese "estatus" permanecerá exactamente igual hasta el día o unos días antes de que se envíe una notificación de decisión o entrevista. Por lo tanto, no puede aprender nada útil sobre su caso, excepto para estar seguro de que no ha desaparecido.
En segundo lugar, puede ir a https://egov.uscis.gov/processing-times/ para obtener información sobre los tiempos de procesamiento promedio, teniendo en cuenta que estas estimaciones son muy inexactas. En esa página, ingrese su número de formulario (consulte el Recibo Formulario I-797 y le indicará cuál es el tipo de formulario de qué se trata). También ingrese la "Field Office" o "Service Center" que tiene su caso, que también puede conocer al mirar el Recibo Formulario I-797 en la esquina inferior izquierda. Luego, haga clic en el botón "Obtain Processing Times" para acceder a una página que indica cuántos meses podría demorar su caso como mínimo. La mayoría de estas cifras son en realidad mucho más altas que la realidad. Lo hacen así para que no podamos quejarnos de que el caso está retrasado porque casi siempre pueden decir que su espera todavía está por debajo del supuesto promedio.
Otro dato que se encuentra en esta página es la "Receipt date for a case inquiry" (Fecha de Recibo para una Consulta sobre un Caso). Esto significa que, a menos que su caso haya sido presentado antes de esa fecha, no podemos ni siquiera preguntarle al USCIS por qué el caso está demorando tanto. Literalmente, no aceptarán una llamada sobre el caso y ni siquiera registrarán la llamada como si hubiera ocurrido. Por ejemplo, si la "Receipt date for a case inquiry" es el 1 de julio de 2019, ni siquiera podemos preguntar sobre los casos presentados después del 1 de julio de 2019 porque todavía son "demasiado recientes" según el USCIS. Si su "Receipt date for a case inquiry" aún no está actualizada, le agradecemos que no nos solicite una actualización del caso, ya que la respuesta invariablemente será que no la tenemos y tampoco la podemos obtener.
Ojala, estos recursos lo ayudarán a sentirse más conectado con su caso. Pero la realidad estresante es que una vez que tenemos un recibo, no hay interacción real ni comunicación con USCIS sobre el estado del caso hasta prácticamente el momento en que el siguiente paso está por occurir.
Though it seems hard to believe, USCIS offers no way to check on the progress of an individual case once it is filed. Estimates of processing time are extremely vague and unreliable to the point of uselessness. Further, we are in an unprecedented situation as far as the COVID-19 pandemic and its effect on processing times. The change in presidential administration going into 2021 also makes any attempted guess at processing time useless. For these reasons, we are unfortunately unable to answer any questions about how long it will take to get to the next step or the end of your case.
There are two things you can do, though they are of limited use.
You can go to https://egov.uscis.gov/casestatus/landing.do and enter the Receipt Number from your USCIS Receipt (labeled as Form I-797). However, all this does is confirm that your case has been received and is pending. That "status" will stay exactly the same until the day or a few days before a decision or interview notice is sent out. Therefore, you cannot really learn anything at all useful about your case except to be reassured that it has not disappeared.
Secondly, you can go to https://egov.uscis.gov/processing-times/ for information about average processing times, keeping in mind that these estimates are famously inaccurate. On that page, you input your form number (look at your Form I-797 Receipt Notice and it will tell you what kind of form you filed). You also input the Field Office or Service Center that has your case, which you also learn by looking at your Form I-797 Receipt Notice in the lower left corner. Then click the Get Processing Times button to reach a page that estimates how many months your case might take at a minimum. Most of these numbers are actually far higher than the reality. They do this so that we will not be able to complain that the case is late because they are almost always able to say that your wait is still under the supposed average.
One other piece of information on this page is the "Receipt date for a case inquiry." This means that unless your case was filed before that date, we do not have the ability to even ask USCIS why the case is taking so long. They literally will not accept a call on the case and will not even log the inquiry as having taken place. For example, if the "Receipt date for a case inquiry" is July 1, 2019, we cannot even inquire about any cases filed after July 1, 2019 because they are still "too recent" according to USCIS. If your "Receipt date for a case inquiry" is not yet current, we appreciate your not asking us for an update on the case since the answer will invariably be that we do not have and cannot get one.
Hopefully, these resources will help you feel more connected to your case. But the stressful reality is that once we have a receipt, there is no real interaction with or communication with USCIS about the status until virtually the moment that the next step is upon us.
The spouse of a U Visa holder or applicant can now file for a derivative U visa even if the marriage took place after the principal's application was filed, as long as the marriage was in existence at the time the principal's U Visa is received.
That is the game-changing finding handed down by the U.S. Ninth Circuit Court of Appeals this month in Medina Tovar v. Zuchowski, No. 18-35072 (9th Cir. 2020), widely expanding the number of people who qualify for a U Visa based on marriage to a principal applicant. (Note: depending on the circumstances, children or parents of a U Visa applicant may also qualify as derivatives -- the Tovar case is about expanding the possibilities for spouses).
The U Visa was created to encourage cooperation by victims of certain crimes with law enforcement officers. A principal applicant must, in general, have suffered substantial physical or mental harm as the result of being a victim of certain "qualifying" crimes and must have provided assistance to law enforcement in the detection, investigation, or prosecution of that crime. The U Visa provides a right to remain in the United States and work and also creates a path toward eventual permanent residence and citizenship. The U Visa may even be able to provide immigration relief to some applicants whose lawful status would otherwise be barred for their own crimes or violations of immigration regulations.
Until now, the spouse of a principal U Visa applicant could only be included in the application and receive a "derivative" U Visa of his or her own if the marriage was in existence on the date that principal filed. But the Ninth Circuit has ruled that the regulation so stating was unlawfully passed, and that actually the spouse will qualify so long as the marriage is in existence on the date that the principal applicant receives the U Visa.
This means that for those who have a pending U Visa application, it is not too late to file an application for their spouse.
Keep in mind that the Trump administration is likely to challenge this holding or may refuse to comply with it. The coming weeks will give us a better idea of whether this decision is here to stay.
If you have a U Visa application pending and a present or future spouse who has not been included, seek legal counsel about the possibility of a derivative application.
A federal judge has ordered the Department of Homeland Security to begin accepting new applications for the Deferred Action for Childhood Arrivals ("DACA") program by Monday, December 7, 2020. The ruling also orders that the administration must issue related work permits for validity periods of two years, reversing the change to one-year issuances that had been instituted over this past summer.
However, when the U.S. Supreme Court ruled in June 2020 that the Trump administration's attempt to end DACA was unlawful, the Department of Homeland Security continued to refuse to consider new applications for the program. It is unknown at this time whether they will comply with the latest order or whether they will attempt to appeal the decision and/or continue to reject new applications.
Regardless, it seems certain that any resistance to the full reinstatement of DACA will end when Joe Biden assumes the office of President in January 2021. Therefore, anyone who may qualify for first-time DACA should start preparing the necessary materials and seek qualified legal assistance in anticipation of applying.
DACA is for persons who arrived in the United States prior to reaching the age of 16 and fulfill other requirements related to age, education, criminal history, and continuous presence. It affords some protection against deportation and authorization to work in the United States. Though it does not directly provide a path to permanent residence or citizenship at this time, there are circumstances under which a grant of DACA has been able to open such opportunities. To learn more, speak with qualified legal counsel.
Although the U.S. Supreme Court has ruled that USCIS did not follow proper procedures in trying to rescind DACA and reversed its attempt to do so, USCIS has refused to accept new applications for DACA as well as for Advance Parole.
It seems likely that the White House will again attempt to terminate the DACA program. Further, USCIS has stated that future renewals will only be for one-year periods instead of two.
Both the decision to refuse new applications and the limiting of renewal periods are likely to face legal challenges, and the eventual outcome is uncertain. Please check this post in the future for updates.
The Law Office of Jeff Jung remains fully operational and working on all cases throughout the coronavirus pandemic and the social distancing directives, although we are closed to in-person meetings. My staff and I are working full-time from home and have full access to all our case files and resources.
USCIS has resumed in-person services as of June 4, 2020 in some of its field offices including Los Angeles / Los Angeles County. Oath ceremonies that were previously cancelled are already in the process of being rescheduled. Interviews for immigration benefits have already begun. Applicants have the option of bringing an attorney in person or having an attorney appear telephonically. Strict social distancing policies and entry requirements will be in place so check uscis.gov/coronavirus before going there.
U.S. consulates abroad have also suspended all in-person interviews and appointments for the time being with no reopening date specified as of this writing. However, both USCIS and the consulates continue to process paperwork, and it is unknown whether the pandemic will speed or slow this portion of their work.
The Executive Office for Immigration Review (Immigration Court) is in the process of reopening on a location-by-location basis. Hearings in Los Angeles resumed in mid-September 2020 though it is unclear which hearings will proceed telephonically and which will be in person..
If your case was already not expected to involve any person-to-person contact with government offices for at least a year from now, there is no reason at this time to think that processing of your case will be affected at all.
In the interests of the health of our clients, ourselves, and the global community, we continue to require that any documents or other materials you need to provide us for your case be sent by email or mail. When sending by mail, be sure NOT to request a signature confirmation since nobody will be present in the office to sign. If mailing any checks or money orders for filing fees, be sure to write them payable to U.S. Department of Homeland Security. Do not put any variation of their name.
We remain fully open for the purposes of receiving your phone calls and emails and are open for new business as well. However, if you simply wish to know if the status of your pending case has advanced, you can check the USCIS status web page at https://egov.uscis.gov/casestatus/landing.do. You will need the receipt number from the Form I-797 Notice of Action that USCIS sent you after receiving your initial filing. You can also check the normal processing time for any given form by visiting https://egov.uscis.gov/processing-times/. At that site, you choose the Form that you filed and the location where it was filed (it is listed at the bottom of your Form I-797 Notice of Action). The resulting page will tell you the average processing time and will list an "Inquiry Date." If your form was filed later than that Inquiry Date, USCIS will not even entertain an inquiry on the status since it is not considered "late" by their standards.
Please stay safe and healthy as we all do our part to comply with our government's efforts to contain this health crisis.