Rare Opportunity for Spouses & Children of Green Card Holders
By James R. Gotcher and Momal S. Iqbal
Los Angeles, CA

Quite unexpectedly, the Department of State has advanced the cutoff date for the family based visa category reserved for spouses and unmarried children under age 21, of US lawful permanent residents (“green card” holders), to “current” for the month of August.

The significance of this development is that every spouse and unmarried child of a green card holder, physically present in the United States, may apply for their own green cards in August. In addition, spouses or unmarried children of green card holders that have approved family based petitions (I-130) and are currently living outside of the US may now apply for their green cards.

As many already know, US green card holders can sponsor some family members (spouses and unmarried children regardless of age) for US green cards. Spouses and unmarried children under the age of 21 are put in a visa category called F2A, while unmarried children of green card holders that are 21 years of age or older are put in a visa category called F2B. In the past, both these categories were heavily backlogged and the beneficiaries of approved I-130s in these categories would have to wait several years before they could obtain their green cards. Therefore, this is a huge opportunity for those in the F2A category. Unfortunately, The F2B category is still severely backlogged. Beginning in August applications for green cards from F2B applicants will be accepted for those who filed I-130 petitions in December 2005 for all countries except Mexico and the Philippines, which are even further back.

To be sure, this is a limited opportunity and the window for filing will close very quickly. There is a good chance that the family based 2A will remain “current” for the month of September, but it is a near certainty that October will see a return to the more normal backlog of several years.

In many ways, and for similar reasons, this is a family based immigration version of what happened with employment based visas in July, 2007. For a very limited time (47 days) in 2007, all employment based categories were “current” for all countries. More than 350,000 employment based applicants were able to submit adjustment of status applications during that opportunity. When that filing window closed, priority dates retrogressed and have remained backlogged through today. Nonetheless, those who applied in 2007 were able to get advance parole and employment authorization, which they have maintained through the present time.

While it is highly unlikely that anyone who files for adjustment of status next month in the F2A category will actually receive a green card before the quota retrogresses in October, this filing window provides a wonderful opportunity to stabilize status and gain both work and travel authorization. When someone applies for adjustment of status, they gain a number of benefits right away. First, their status becomes that of an applicant for adjustment of status. This means that they do not have to maintain nonimmigrant status (such as F1 or H4) while they are waiting for their green card. Second, they become eligible for employment and travel authorization. If they apply for these benefits concurrently with their adjustment of status application, they will likely get them within 75 days of filing.

To be sure, this window of opportunity is going to close. For this reason, it is vitallyimportant that anyone who qualifies get their application on file during the month of August. It is not enough to simply send it in, the application must arrive physically at the USCIS filing location before the last business day in August (August 30 th). If it arrives after that date, and the quota has retrogressed, the application will be rejected.

If, as expected, the family based 2A quota retrogresses in September or October, an individual with a timely filed application for adjustment of status will be allowed to remain lawfully present in the United States while they wait for their green card to be issued. They will be able to extend their work and travel permission as many times as necessary while they are waiting.

For those in the F2A category who have been patiently waiting in their home countries for a visa to become available, it is essential you move quickly to try and obtain a visa interview as soon as possible in August (or September if visas are still available). This means pay your visa fee bills electronically and immediately to initiate the next steps in the process. Upload supporting documents electronically if possible to save time. If any paperwork needs to be mailed – be sure to overnight them instead of using regular mail. It is imperative that you submit the required documentation as soon as humanly possible to try and get an interview while visas are available.

This is a once in a lifetime opportunity for family based 2A applicants and everyone who is eligible to file must consider this opportunity carefully and act quickly.

Frequently asked questions:

Family based 2A becomes current temporarily

The August Visa Bulletin shows the family based 2A category as "current" across the board. This means that any spouse or child under 21 of a lawful permanent resident may file a combined I-130/I-485 package as of August 1 st if they are in the US. If they are outside the US, with an approved I-130, they may now file the appropriate Department of State documents to obtain a green card to enter the US. While it is likely that F2A will remain "current" in September as well, there is no guarantee that this will happen. If you fit into this category, make every effort to file your adjustment application in August. This will definitely retrogress in October and visas will no longer be available on a "current" basis.
To help folks understand this development a bit better, here are a few FAQ:
1.  I am married to a lawful permanent resident. Can I file for a green card now?
Yes, as of August 1st, and continuing through at least the end of August, you may file an application for adjustment of status (I-485) if you are physically present in the US.
2. Does it matter if I do not have an approved I-130 yet?
No. If you are in the US and have an approved I-130, great! Include a copy of the approval with your I-485 application. If you have an I-130 that is pending, include a copy of the receipt notice with your I-485 application. If you haven't yet filed an I-130, then file one concurrently with your I-485.

If you are outside the US, it is very unlikely you will be able to obtain an immigrant visa interview in time if you do not already have an approved I-130. However, if you have an I-130 that is pending and is approved in July or beginning of August, make every effort to act quickly and submit all the required documentation and pay the visa fee to try and obtain an interview as soon as possible. If visas are available in September and you are able to get an interview in that month, it is very possible you could obtain your green card. A visa is generally reserved at the time of interview.
3. How long is this category likely to remain "current"?
There is a good chance that it will remain "current" during September as well, but almost certainly the cutoff date will retrogress (likely several years) in October. This is a temporary adjustment made in order to assure that all family based visa numbers are used this year.
4. Is it enough to submit my I-485 in August (or September)?
No, your application must be physically received by the USCIS on or before Friday, August 30th (the 31st is a Saturday). If your application is received after the 30th, and the cutoff date has retrogressed, you will have missed the window. We will know by mid-August if the F2A category will remain "current" for September as well. If it does, then the deadline for having your application delivered to the USCIS is Monday, September 30th. If you mail your application prior to the deadline, but it arrives after the deadline, it will be returned to you.

Remember, in order to file an adjustment of status application (I-485) the applicant must be physically present in the US. Once you obtain your advance parole travel document, you may leave the US while your adjustment of status application is pending.

5.  Does this mean that my green card will be approved in August (or September)?

No, it means that you may file. USCIS processing takes much longer than the interval the F2A category is expected to remain open. However, you will be able to get an I-485 on file, and obtain EAD/AP benefits as a result.

6. If (when) the F2A cutoff date retrogresses, what will happen to my pending AOS application?

Nothing. It will remain on file and you will be able to extend your EAD/AP documents until you get your green card. Which means you can stay in the US and work lawfully until you are granted your green card.

James R. Gotcher and Momal Iqbal| Global Immigration Partners, Inc.

MSI@gotcherlaw.com

(James R. Gotcher has been practicing immigration law for over 30 years. He concentrates on providing immigration services to IT and biotechnology firms and their employees.

Momal has been practicing immigration law since 2008. Prior to becoming a private immigration attorney, she served as an Assistant Chief Counsel for the US Department of Homeland Security, Immigration and Customs Enforcement.)

 

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