One
provision of the President's immigration Executive Actions allows select nonimmigrants with approved I-140s, and their derivative family members, to
file their Applications for Adjustment of Status (to become Permanent Residents)
without waiting for their priority date to become current in the Visa Bulletin.
Only a brief description of this proposal has been released, although the White House acknowledges that this policy change must go through the formal
regulatory process. The need for formal
written rulemaking is obvious: 8 C.F.R.
245.1(a) specifically requires that “... an immigrant visa is immediately
available at the time of application”.
A simple policy shift is insufficient to directly contradict a formal
regulation.
The
stated purpose of this proposal is to give these intending immigrants the many
benefits available to applicants whose Adjustment application has been filed
and accepted by USCIS. So, what are
those benefits?
The
most obvious benefit, and often the most valued, is multi-year employment authorization
for the principal (sometimes dangerous) and derivatives. Other benefits include the potential
availability of advance parole for travel and enhanced access to portability
options.
Notice
how this advanced-adjustment filing proposal is also very closely tied to two other IAEA initiatives: 1) increased portability for applicants waiting for a
current priority date, and, 2) clarification of portability’s “same or similar
occupational classification” requirement.
AC21
Section 106(c) allows a worker with an application for Adjustment of Status to
change employers for their Permanent Residence if the new job is the
“same or similar” when compared to their original position, AND IF the application for
Adjustment of Status has been pending over 180 days. Under today's proposed change, applicants are able to file for
Adjustment of Status many years before their priority date is current. Since the wait for visa availability in many employment-based categories will almost always be over six months, the
opportunity to switch employers is greatly increased.
Like most initial announcements, we
have few details and many questions.
For those of you who followed the legal discussion on this blog about
the proposed H-4 EAD rule, you know that what may appear to be a simple policy
idea can become extremely complex when all ramifications of the rule are
explored.
There
are many questions that come to mind about this new proposed
regulation.
Remember,
nothing that has been said so far to indicate that this rule would have any effect on priority
dates. No change in the wait to become
a Permanent Resident. The discussion so
far is only about the benefits of being able to file the Adjustment application
many years earlier then is now allowed.
Will there be any special protections given to derivative children,
unaided by the Child Status Protection Act, who age-out after filing for Adjustment and before
PR is granted? How will USCIS (and especially the embassies) view cases where a person obviously ineligible for Adjustment of Status fradulently reaps the
benefits of a pending application before being denied
residence? Further, the government talking points only
refer to Employment-Based cases. Will
this rule also cover those occasional Family-based cases where the applicant is
in a lawful nonimmigrant status and thus also Adjustment-eligible?
Few
facts, but many questions, and the biggest is, “When”? Conventional wisdom says a regulatory
change takes at least six months, usually more. It is also possible that we will never see
this provision in effect if Congress acts on immigration reform before the
regulatory process is completed. However, there is
a also very small possibility that USCIS may effect this change as an
Interim Rule with a request for comments, allowing the policy to be in effect
while the regulatory process is ongoing.
More updates after more facts are disclosed. Stay tuned...
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