{"id":5694,"date":"2016-08-28T01:41:52","date_gmt":"2016-08-28T01:41:52","guid":{"rendered":"http:\/\/www.pegalaw.com\/?p=5694"},"modified":"2016-08-28T01:41:52","modified_gmt":"2016-08-28T01:41:52","slug":"visa-bulletins-dates-of-filing-and-its-impact-on-visa-applicants","status":"publish","type":"post","link":"https:\/\/www.pegalaw.com\/en\/visa-bulletins-dates-of-filing-and-its-impact-on-visa-applicants\/","title":{"rendered":"Visa Bulletin’s “Dates of Filing” and its Impact on Visa Applicants"},"content":{"rendered":"

Many months ago, I mentioned that Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State, indicated that there is a likelihood that come October, 2016, USCIS may utilize the \u201cdates of filing\u201d schedule in the visa bulletin, colloquially referred to as \u201cSchedule B<\/em>\u201d for the employment-based visa categories.<\/p>\n

As the cut-off date on Schedule B is often times significantly later than that of Schedule A, the usage of Schedule B would allow many additional I-485 (adjustment of status) applicants to become eligible to file the I-485 application because their priority date has surpassed the cut-off date on Schedule B. The obvious advantages of being able to file I-485 application are: (1) applicant and accompanying family members are able to also apply and receive employment authorization and advance parole (2) applicant and accompanying family members are able to lawfully stay in the U.S. while their I-485 applications are pending, even after the expiration of their I-94 and (3) applicant and accompanying family members can avoid attending visa interviews at the foreign consular post.<\/p>\n

An additional issue that often plague potential immigrants is whether the filing of I-485 will also allow their children to lock-in their age and receive protection under U.S. Child Status Protection Act (CSPA). A \u201cchild\u201d is defined as an individual who is unmarried and under the age of 21. Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as \u201caging out.\u201d U.S. Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary\u2019s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect \u201cchild\u201d status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants.<\/p>\n

Under INA Section 203 (h)(1)(A), in order for the child to be protected by CSPA, he\/she must seek to acquire lawful permanent resident (LPR) status within one year of the visa being available. Thus, to analyze whether filing I-485 would allow the child to be protected by CSPA, we must consider two questions:<\/p>\n

    \n
  1. Does the filing of an I-485 application constitute \u201csought to acquire\u201d LPR status?<\/li>\n
  2. Does the usage of Schedule B establish that an immigrant visa is available?<\/li>\n<\/ol>\n

    The answer to the first question has been well settled. The USCIS and Department of State (DOS) have defined the term \u201csought to acquire\u201d in many instances to include the following actions:<\/p>\n