Labor Immigration Law

United States Labor Immigration Law News and Analysis

USCIS Articles

Notes from USCIS Conference Call on H-4 Spouse EAD; Recording Available for Download

Our office just completed participation in the very-busy USCIS conference call to discuss and answer questions about the upcoming H-4 Spouse EAD rule.   We are happy to share our immediate notes and reactions from the call to our readers.   We also have upcoming engagement options for our attorneys to provide more information and answer further questions about the process.

Our Notes from the H-4 Spouse EAD Conference Call

I-140 Petition from Former Employer.   One of the biggest questions about the H-4 Spouse EAD rule was answered – according to the panelists from USCIS, an approved I-140, even from a former employer, would permit an H-4 Spouse EAD when the H-1B spouse has started working for a new employer and the new employer has not obtained an approval of the new I-140.     This is great news and was one of the biggest unanswered questions about the rule.

However, the panelists specifically indicated that a withdrawn I-140 petition by the former employer means that there is no longer “approved I-140″ and, as a result, there is no longer H-4 Spouse EAD eligibility.

Concurrent I-539 and -765 Applications Allowed.   H-4 Spouse EAD applications (on Form I-765) can be filed concurrently with I-539 and even I-129 petitions, when the circumstances permit.    It is expected that in many cases both the I-539 and the I-765 applications will be adjudicated at the same time.

H-4 EAD Validity.   The term of H-4 Spouse EAD card validity is expected to be the same as the underlying H-4 status.   The EAD will be valid from the date of approval until the H-4 status expiration date.    But a valid EAD is required at all times to work – so proper planning for the extensions of status and EAD is key.    The H-4 Spouse EAD will be valid for employment with any employer and there is no requirement that an H-4 Spouse EAD holder be employer at all times.

EAD Is Not a Travel Document.   The EAD itself would not permit travel to the U.S.  An H-4 spouse who has an EAD will need an H-4 visa stamp in order to travel back to the U.S.   The EAD only allows employment during its validity period.

Mechanics of the Application Process.   New Form I-765 with instructions will be released over the next days or few weeks.  The application will be filed on paper (no electronic filing, at least for now) and must include full documentation of eligibility.   In cases where certain documents are not available, providing as much relevant information as possible is key in order to allow USCIS to look up information about a case.   The application does not anticipate (for now) having to do biometrics – instead, the application will request submission of photos.

Unanswered Questions.   There were a few questions about some fairly complex situations which USCIS took under advisement and we should expect more information in future USCIS communications about the H-4 Spouse EAD rule.    Our office will certainly provide more information about once we have any news.

Opportunities to Learn More and Discuss With Our Attorneys

To accommodate the great demand of clarification and create a public forum for this, our attorneys will be conducting series of Q&A events focuses solely on the H-4 Spouse EAD rule, as follows:

  • Online Chat – Thursday, February 26, 2015 at 3:00 PM EST – free online chat session with Capitol Immigration Law Group attorneys to discuss the H-4 Spouse EAD rule and answer questions about the rule.    Attend the live chat session.
  • Webinar – Tuesday, March 3, 2015 at 1:00 PM EST – free webinar with a more detailed and formal presentation and discussion of the rule, its criteria, mechanics, requirements and challenges.   Register for the free webinar (space is limited).

USCIS H-4 Conference Call Recording

For those who were not able to attend the call but wish to hear a recording, please follow this link.


We will continue to provide information on this rule as it becomes available.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

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Non-US Citizen and Moving? Don’t Forget to File AR-11 Notification with USCIS

Most non-U.S. citizens are required to report a change of their residential address within 10 days of moving within the U.S. or its territories.    This requirement becomes even more important when there is an application pending with USCIS.   The change of address notification is done by filing Form AR-11 electronically with USCIS.

Who Must File and Who Does Not Have to File AR-11?

The rule (8 CFR 265.1) is that all non-U.S. citizens in the United States are required to inform USCIS of their new address within 10 days of moving.   There are exceptions:  diplomats (visa status A); official government representatives to an international organization (visa status G), and certain nonimmigrants who do not possess a visa and who are in the U.S. for fewer than 30 days are not required to file AR-11.

U.S. citizens normally not required to a Form AR-11 with two important exceptions.    U.S. citizen petitioners who are petitioners in an application (for example, I-130 filing) should inform USCIS and update their address on the pending application so that they receive correspondence relating to the case.     Also, U.S. Citizens who have previously submitted a Form I-864 (Affidavit of Support) on behalf of someone who has become a permanent resident are legally required to notify USCIS of a change of address – in this case, a different form, Form I-865 must be submitted within thirty days of moving to inform USCIS of changed address.

Importance of Filing AR-11

It is important to follow and remember about this requirement for a number of reasons.

Perhaps most importantly, this is the law and there are penalties for non-compliance.   A willful failure to give written notice to the USCIS of a change of address within 10 days of moving to the new address is a misdemeanor crime.  If convicted, the alien (or parent or legal guardian of an alien under age 14 who is required to give notice) can be fined up to $200 or imprisoned up to 30 days, or both. The alien may also be subject to removal from the United States. (INA § 266(b)).   Failure to comply could also jeopardize one’s ability to obtain a future visa or other immigration benefits.

Additionally, USCIS uses their most current address information to mail case-related information.   This is true even if a case has been approved and closed for months or years.

Conclusion:  Electronic Filing Options Make it Easy to File AR-11

Compliance should not be burdensome.   USCIS allows electronic submission of Form AR-11 and compliance in most cases takes 5 to 10 minutes.    There are no government filing fees associated with this filing.   The form provides electronic confirmation and we urge everyone who files AR-11 to make and keep a record of the confirmed address change.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with this or related immigration-related issues.

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USCIS Revised Policy Regarding I-693 Medical Exam Validity – Restricts Validity to One Year

USCIS has announced a change in their policy regarding the validity period of a Form I-693, Report of Medical Examination and Vaccination Record, when filed in support of a Form I-485 Adjustment of Status Application.   Effective June 1, 2014, the I-693 medical report will be valid for one year from the date of submission to USCIS.   This is in addition to the requirement that the I-485 applicant must submit the I-693  medical exam within one year of the actual medical exam date.

Background and Reasons for the Change of Policy

Before 2002, USCIS considered a Form I-693 medical exam valid as long as it was filed within one year of the civil surgeon’s signature.   Since 2002, USCIS has kept this practice and has continuously extended the validity of the civil surgeon’s endorsement on the I-693 medical exam.   As a result, timely-filed Form I-693 medical exam documents were automatically considered extended and “current” by USCIS.

After consultations with the Centers for Disease Control (“CDC”), USCIS has decided to change the policy regarding the validity of I-693 medical exams and to effectively discontinue the automatic validity extension policy.   While we do not know the specific reasons for the policy change and any concerns raised by CDC, a possible reason may be the fact that under the prior automatic extension policy, there may have been applicants who have been waiting for I-485 adjudication for 3, 5, 7 or even more years and for those applicants the I-693 medical exam report on file simply does not provide an accurate picture of their health (and any health risks they may pose).

Policy Change Related to Increased Number of I-485 Requests for Evidence

This policy change is directly related to the increased number of recent requests for evidence (RFEs) on pending I-485 applications, especially for cases where the priority date is expected to be current over the next months.     As we reported in our recent article, our office sees an increased number of RFEs which specifically request renewed I-693 medical exam report to be submitted back to USCIS.     It seems that USCIS is using the need of a new I-693 medical exam report to also request additional items in their RFEs, such as employment verification documents.


It is helpful to see that USCIS has formulated a policy and a formal explanation to the medical exam validity period.    This policy change helps explain the wave of recent (and upcoming) RFEs.   We recommend that I-485 applicants who have had their I-485 pending for more than year to be prepared to respond to an RFE for medical exams, among other related items.    This includes updating their mailing address with USCIS and ensuring that their attorney of record information on the I-485 is current.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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USCIS Reverses OPT Extensions Denied Due to Volunteering or Unpaid Work

Our office had received a number of inquiries and we have worked with a number of individuals, universities and their DSOs who had seen a spike in OPT extension (STEM OPT extensions, most often) which were denied by USCIS due to the fact that the F-1 holder had engaged in volunteering or unpaid work during the term of their initial OPT term due to allegedly exceeding the unemployment maximum allowed for OPTs.      After a number of inquiries to USCIS were raised, USCIS has announced that such denials were issued in error and will work on reinstating the applications (and status) to those F-1 holders who may be affected.

The USCIS Announcement

USCIS’s announcement is dated February 6, 2014 and states plainly that some 17-month OPT STEM extensions were denied in error.     The relevant OPT policy guidance (SEVP OPT 2010 Policy Guidance, Section 7.2.1) states that:

“Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.”

STEM OPT extension applications were denied (in error) solely because the USCIS adjudicator made the determination that the F-1 OPT holder exceeded the unemployment allowance (90 days for 1st year of OPT) and violated their F-1 status, thus making them ineligible for STEP OPT extensions.    As it was clear and as it is confirmed now by USCIS, it appears that such denials were based on inadequate training and/or misinterpretation of the relevant guidance by USCIS adjudicators.

Was Your STEM OPT Extension Application Denied Due to Volunteering/Unpaid Work?

USCIS has created an avenue available to those whose STEM OPT extensions were denied solely on this ground.   The student should contact the Service Center which issued the denial decision.   Specific instructions are below:

If a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by sending an email message to the applicable dedicated student mailbox (listed below). In the email message, the student should provide his or her full name, as well as his or her USCIS receipt number relating to the denied OPT STEM extension application.

  • California Service Center:
  • Vermont Service Center:
  • Texas Service Center:
  • Nebraska Service Center:


We are happy to hear that USCIS, upon making a determination of a pattern of incorrect decisions, has reversed course and  has created an avenue to affected F-1 students to reinstate their F-1 status and OPT STEM application.      Unfortunately,  for many affected individuals this kind of announcement and relief may come too late.   For example, some F-1 students whose STEM OPT extensions were denied have already left the US or have moved on to a different status.

Our office stands ready to assist F-1 students who may have been affected by this kind of STEM OPT denial.  Please contact us for an evaluation of your case.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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U.S. Citizenship Form N-400 Revised Substantially

The U.S. Citizenship and Immigration Service (“USCIS”) just announced that they have released the revised FormN-400, Application for Naturalization.   The main changes in the new N-400 form are the new questions required by anti-terrorism and child soldier prevention statutes, the (according to USCIS) clearer eligibility instructions and the addition of a dynamic 2D data barcode feature.    These changes, however, more than double the size of the N-400 form — the old version was ten pages while the new and current version is 21 pages long.

Form N-400 Changes

Perhaps the most obvious change to the N-400 form is the addition of a 2D dynamic barcode at the bottom of each page.  This technology has been used increasingly by USCIS in a number of their forms.   The idea is that as a user enters information on the form electronically (in PDF), the 2D barcode at the bottom of the page changes to incorporate the information provided on the form.     During the intake processing of the application, USCIS would then simply scan the barcode on each page and the form data would be entered automatically into the system (more, and somewhat technical, information on the 2D barcode process).

In addition, USCIS has added questions to conform with the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 and Child Soldier Prevention Act of 2008.   The additional information is important for USCIS to make a better determination of an applicant’s eligibility for U.S. citizenship.  The questions relate not only to concerns surrounding good moral character but also to issues relating to the security of the United States.

And perhaps the most important change is that the new form has revised and more comprehensive instructions on general eligibility requirements intended to help applicants understand the naturalization application process.   The N-400 form was not easy before the revision, now with an extra eleven pages, great instructions are critical.

Versions and Validity of N-400 Form

The new Form N-400 is available for download and is recommended to be used for all future N-400 U.S. Citizenship filings.   On Monday, May 5, 2014, USCIS will no longer accept older versions of Form N-400.   USCIS will reject and return previous versions of Form N-400 submitted after May 5, 2014.


Our office handles many N-400 U.S. citizenship applications and we would be happy to assist green card holders who are eligible to become citizens.    Please contact us for an evaluation of your citizenship eligibility and for a process timeline and fee estimate.  Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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The SAVE System – Driving Licenses and Proving Valid Status

Unknown to many, the SAVE system allows DMV agencies throughout the United States to verify valid status of driving license applicants (where this is required).   The SAVE system is run by DHS and allows states and agencies to confirm an individual’s status and eligibility to certain benefits.   It all works well most of the time; however, there are instances in which the SAVE system does not have correct records and information and, as a result, delays in the application process are inevitable.   This article explains the SAVE verification process.

What is SAVE?

The Systematic Alien Verification for Entitlements (SAVE) program is a service run by the Department of Homeland Security that helps federal, state and local benefit-issuing agencies, institutions, and licensing agencies determine the immigration status of benefit applicants so only those entitled to benefits receive them.    Specifically, it is used by Department of Motor Vehicles (DMV) agencies throughout the U.S. to verify an applicant’s valid status in the U.S.

SAVE In Action

When a non-immigrant applicant for a driving license appears at a participating state’s DMV and submits a driving license application, one of the documents and information being checked is the valid immigration status of the applicant.    Among other processing steps, the DMV clerk would input the applicant’s information into SAVE and SAVE would provide the government’s response with respect to status, validity and allow the DMV to make a determination whether or not the applicant is eligible for a driving license (or other benefit sought).

Please note that different states have different driving license eligibility requirements and not all states participate in SAVE – please check your state’s eligibility requirements and DMV rules.

SAVE Verification Problems

In most instances, nonimmigrants driving license applicants do not realize the existence of the SAVE system and that it may be a part of the DMV application process.   However, there are cases in which SAVE provides the DMV a response indicating that the applicant cannot be issued a driving license.  For example, SAVE may (correctly or incorrectly) indicate that the applicant’s status has expired.  These are the kind of situations which would require (often) a significant time and effort to correct the SAVE record and be able to obtain a driving license.

Correcting SAVE Records

There are three levels of dealing with SAVE with respect to information which may be inaccurate.

First Step. SAVE begins verifying the legal status of nonimmigrants, immigrants and naturalized citizens with an initial verification (generally 3-5 seconds).   This is the initial (and often transparent to the applicant stage).    In most cases, the SAVE confirms the eligibility and the applicant continues with the DMV application process.

Second Step.  SAVE returns a negative response.    Additional verification is necessary in some instances where status cannot be verified through the first step.  A second verification query will be automated but can take from as little as 3-5 working days to a few weeks to generate a response.   The second step confirmation process is often initiated by the DMV’s SAVE office (not all DMV locations have a SAVE office – you should check with your state’s DMV to confirm which DMVs have SAVE offices).   Also, different states have different procedures on invoking the second step – many states require the applicant to complete a form, which is then used in the SAVE clearance process.   The applicant should be provided a SAVE case number and the status can be tracked online.

Third Step.  A third query may be necessary where the verification is not confirmed through Steps 1 and 2.  The DMV submits Form G-845 Document Verification Request with copies of an applicant’s proof of status documentation and immigration documents to the SAVE program who then verifies the person’s status manually.    This may take two to six weeks in most cases and the case can still be checked online.

Unfortunately for some applicants, in the event SAVE does not return positive confirmation of their status, the correction process may vary from a few days to a few months.  This makes it advisable to apply for a driving license as early as possible to minimize the chance that the applicant may be without a valid driving license for a period of time.

Pending Extension of Status Documents

Our office hears often from clients or readers who are seeking to extend their driving license while they continue their employment (or stay) in the U.S. pursuant to a pending application and who face SAVE or DMV issues because their I-94 card has expired.

Under the immigration law at 8 C.F.R. § 274a.12(b)(19), a timely filing of an extension of status request allows certain non-immigrants (H-1B, E-1, E-2, L-1A, L-1B, O-1, P-1, R-1) persons to stay legally in the US and work for 240 days past the expiration of the original I-94 or until adjudication of the application, whichever happens first.  This is otherwise known as the “240 day rule.” A proper filing of the application and a pending status allows for continued lawful status/presence and authorization to work.

When the DMV refused to issue a driving license in this kind of extension situations, there are two common reasons.  The first one is a DMV clerk who is not aware of the applicable regulations and who does not realize that certain extension of status applications allow status and permission to work.   This may be a training issue at some DMVs and often this can be resolved by seeking to speak with a supervisor at the location.

In other cases, the SAVE system returns negative confirmation and in this case the applicant should work with the DMV and follow the steps outlined above to seek to correct the record and obtain SAVE clearance before a driving license can be issued.


While invisible to many, the use of the SAVE system throughout the driving license issuance process makes it an acronym some nonimmigrants learn very quickly.    Other than filing proper paperwork and ensuring that one always maintains valid status, unfortunately, there is not much a nonimmigrant (or their employer or attorney) can do throughout the immigration process to ensure that SAVE records are correct.

We are hopeful that this article would help those who may need to deal with their DMV or to those who are in a SAVE verification process to better understand the process and their rights.    We would love to hear SAVE stories from our clients and readers.   We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.      Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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USCIS Redesigns and Proposes Revisions on Form I-129 – Public Comment Period Open

USCIS has circulated a proposed draft of a redesigned and revised Form I-129 and has opened a public comment period on the proposed changes.   The new form features a new design layout where most of the questions are the same but laid out slightly differently.   There are some changes to the wording of some questions, but there are also some notable substantive changes on the form which may impact a number of I-129 filers.   Specifically, one of the substantive changes on the form may impact notably beneficiaries who have certain ownership interest in the sponsoring employer.

Overview of Proposed Substantive Form I-129 Changes

DUNS Number.   The I-129 form now asks for a company’s DUNS number (more info)– we believe this field was added to allow USCIS to do better VIBE system checks on a petitioner’s existence.

Ownership Interest.   The form now asks whether the beneficiary has any ownership interest in the petitioning employer and if the answer is “Yes,” the form asks for details of the beneficiary’s ownership interest.    This is a new field and we believe it was added to allow USCIS to test the “employer-employee relationship” for many employers where the beneficiary has some ownership interest.   This can be a significant issue for startups and entrepreneurs who have secured H-1B visa (for example) to allow them to work for their own company.     Our office has dealt with this issue on numerous occasions and we see continued headwinds for entrepreneurs to obtain H-1B petition approval when the entrepreneur is a significant owner of the employer.       Our office also has an upcoming webinar on entrepreneurs and H-1B.

Attorney Attestation.   The form expands the attorney attestation section with respect to the accuracy and the quality of the information submitted on the form.


The public comment period ends on November 25, 2013 so we encourage anyone who wants to comment on the proposed Form I-129 revision to do so.     We would continue monitoring this subject and provide updates to our clients and readers.   Please do not hesitate to contact us if we can help you.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.

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USCIS Processing Times Reports – How to Interpret and Are They Reliable?

Anyone who has ever filed a petition of some sort with USCIS has wondered, “How long would I have to wait to get a response from USCIS on my application?”     Chances are that such an applicant has used the online status check and has also checked the “normal” processing times for the type of a case they have had filed.   Many of our clients and readers are well aware of these two resources and we encourage following the information posted on the USCIS website.    However, we often receive questions by clients on how to interpret the processing times posted on the USCIS website and whether these reports are actually reliable.    We seek to provide a little bit of information on how these government processing times reports are compiled, how to interpret them and whether they are reliable at all.

Recent Issues with Inaccurate Processing Times Reports

Over the past few months, we have seen an increasing number of cases for which the processing times reports do not reflect accurate case status.  In other words, the processing times reports have been inaccurate, in some cases, substantially so.   For example, when USCIS processing times indicated that H-1B cases are processed within 3 months, our office had a number of pending cases which had been pending well above this time period.

USCIS has addressed some of these concerns and have taken steps to correct the way the processing times are gathered and reported to ensure higher quality data.     In the past, internal investigations by USCIS have revealed that some of the processing times are simply being reported incorrectly.   For example, the Texas Service Center had inadvertently been processing cases out of their receipt order, thereby deviating from their standard first-in/first-out policy.    We were assured that this deviation has been corrected.

How Are Processing Times Determined?

The USCIS calculated processing times are intended to be a reflection of the number of months of application/petition receipts that an office’s inventory of pending cases represents.    For example, a 4-month processing time reported for a service center indicates that the inventory of pending cases (waiting to be processed) was equal to the number of cases that the center had received over the past 4 months.    This means that the processing times are somewhat backward looking in the sense that they do not necessarily reflect how long a new case would remain pending.

USCIS also shows the online processing times based on workload processing goals.   If USCIS is processing a specific type of a petition in less time than the processing goal, the processing time would be shown in months.    If USCIS is taking longer than the processing time goal to handle a case, USCIS will post the specific filing date of the oldest pending case the service center has to process as of the date of the processing time chart.

USCIS’s methodology in calculating the processing times is as follows:   USCIS only calculates the time a case is considered to be actively pending with USCIS and is under adjudication.  It does not take into account the time USCIS is waiting or an action by the applicant or petition.   As an example, the time is takes for USCIS to issue and wait for a response to a request for evidence (RFE) (usually 84 or 87 days), is not reflected in the processing times.

USCIS Working to Provide More Recent Processing Times Information

Another substantial problem with the processing times report is that the data is simply very old.    Often, by the time a processing times report is published online, it is already 30-, 45- or even 60-days old.    USCIS has indicated that it works with its internal IT and Performance and Quality Departments to try to speed up the information gathering and reporting process.   According to USCIS, the current process of gathering the processing times information is manual and based on self-reporting.   USCIS is working on a new system which should allow automated, accurate and faster reporting.    The system is currently being tested and is scheduled for implementation in early fiscal year 2013.

Reliability vs. “Outside of Processing Times”

With all of this background information on how the USCIS processing times reports are compiled, it should not come as a surprise when many start to question the reliability and the usefulness of the processing times reports.    Yes, they may not reflect the most recent information and yes, they may not be fully accurate, but they do serve an important purpose in the adjudication process and our office takes full advantage of the processing times reports to advance our clients’ cases.

Normally, when a case is “within” the normal processing times, there is often very little or nothing that can be done to try to move the case forward.   However, when a case is considered to be outside of the reported processing times, the government allows a service request to be opened and to look into the case status and seek to have it “expedited” or, at least, reviewed.   This is when the processing time reports become very useful — if a case is pending beyond the normal processing times, as current reported by USCIS, then it may be an option (and a good idea) to seek to open a service request with USCIS on the status of the case.     In the past, on many occasions, we have been able to secure quick case adjudication by opening service request on a case which is pending beyond the normal processing times; as a result, while the actual report may not be very reliable and accurate, it is an important tool case management tool.


The ability to obtain recent, accurate and timely information on a case’s processing status and expected turnaround is vital for our office and for our clients and readers.   We remain hopeful that USCIS would continue working towards improving their online case status system and its processing times reports.     We will continue monitoring this subject and provide updates to our clients and readers.   Please do not hesitate to contact us if we can help you.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.

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USCIS Clarifies Eligibility and Timelines for Filing I-485 for Diversity Visa Lottery Selectees

In a memorandum dated August 9, 2013, USCIS has released guidance and clarifications pertaining to the options and timelines for Diversity Visa (DV) selectees who choose to process their green card from within the U.S. by filing I-485, Application to Adjust Status.   The memo seeks to provide clarification to those DV selectees who choose to file I-485 from within the US and, specifically, to indicate that I-485 can be filed when the advance notification number becomes current.   This is done to ensure that I-485 applications can be filed earlier in anticipation of a visa number being current by the time the I-485 is ready for adjudication and approval.

Background of the Ways Diversity Visa Selectees Can Obtain Their Green Cards

Many of our readers who are familiar with the DV lottery are aware that there are two ways to process one’s green card — by processing through the National Visa Center (NVC)/U.S. Consulate or by filing with USCIS a Form I-485 from within the U.S. (for those who are physically in the U.S.).     The USCIS memo focuses only on those who elect to file I-485.   By law, DV visas expire at the end of a given fiscal year; accordingly, a DV adjustment applicant’s Form I-485 (including principals and any of their derivatives) must be adjudicated and approved on or before September 30 of the relevant fiscal year.   Recognizing that it often takes several months to process and approve an I-485 application, USCIS and the Department of State (DOS have created a system where DOS announced, in the monthly Visa Bulletin,  “advance notification” numbers in addition to the “normal” visa availability numbers in order to allow I-485 DV selectees to file their I-485s a little bit earlier.

Rationale of the Advance Notification Numbers

To ensure timely notification and encourage timely filing of applications for adjustment of status, approximately 50 to 60 days in advance of actual DV visa availability, DOS, in consultation with USCIS, publishes in its monthly Visa Bulletin a separate “advance notification” of DV rank cut-off numbers. Such advance notification enables persons to file their Form I-485 applications prior to the time a DV visa becomes “immediately available.” The listing of advance notification of DV availability is meant to enable a person to file his or her adjustment application, even though a visa is not yet available.

This advance notification provides an opportunity for DV adjustment of status applicants to file their Form I-485 applications earlier than would otherwise be possible, thereby enabling USCIS to begin review of such applications. This in turn affords USCIS additional time to determine an applicant’s eligibility for adjustment of status before the end of the fiscal year.

Mechanics of the Advance Notification Numbers Listed in each Visa Bulletin
The Department of State publishes its monthly Visa Bulletin on or about the ninth day of each month. Each Visa Bulletin indicates immigrant visa availability for the upcoming month (e.g., November immigrant visa cut-off numbers are published on October 9). For DV purposes, the Visa Bulletin currently includes two monthly allocation charts which provide: (1) DV visa availability for the current Visa Bulletin month; and, (2) advance notification of DV visa availability for the following month.
Availability Section.  When a DV rank cut-off number (from the DV notification letter) is listed in the availability section of the Visa Bulletin, visas will be available in that month for applicants with DV numbers ranked (in randomly selected order by region) below the specified cut-off number.   The listing of the DV rank cut-off number indicates the DV rank number of the first person who is not eligible to adjust his or her status in a particular month.

Advance Notification Section.  The rank cut-off number listed in the advance notification section indicates the DV rank cut-off numbers for the specific month covered by the advance notification. Anyone with a rank number below the listed rank cut-off number in the Visa Bulletin may file an adjustment of status application.

USCIS DV I-485 Case Procedures.   As of January 11, 2012, the USCIS Case Resolution Unit at the Lockbox reviews every DV-related Form I-485 for visa availability at the time of filing by verifying that the applicant’s rank number is lower than the advance notification cut-off number posted in the most recently published DOS monthly Visa Bulletin.   The officer  will confirm at time of final adjudication of the Form I-485 adjustment application (i.e., when all required processing has been completed) that the DV rank cut-off number is lower than the applicable rank cut-off number posted in the DOS’s current Visa Bulletin.  As a last step, the officer must also confirm that a DV visa number is actually available, before he or she may approve the adjustment application by submitting an electronic request for the DV visa – this is when the I-485 gets approved and the green card ordered for physical production.

It is important to note that these guidelines based on “advance notification” do not apply to I-485 DV applications filed for the current fiscal year in September because such applications must be adjudicated by end of September (the end of the fiscal year).     On the other hand, these guidelines do apply to adjustment applications that are filed on the basis of advance notification in the prior year’s September Visa Bulletin for the next fiscal year’s DV numbers.


We hope that these clarifications would help DV selectees who are eligible to apply for I-485 processing of their green card to better understand the I-485 DV processing option and to take advantage of the opportunity to file their I-485 little bit earlier to ensure that their I-485 application can be approved faster and before the end of the applicable fiscal year on September 30th.     Our office is ready and available to assist in this kind of situations.     We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments.

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DOMA Struck Down — Immigration Benefits Available to Same-Sex Married Couples

On June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act (“DOMA”).  In a 5-4 decision, the Supreme Court held that DOMA is unconstitutional because the word “marriage” in any federal law meant only a union of a man and a woman.  Until yesterday, DOMA denied a number of federal benefits, including immigration, to legally married same-sex couples.    As a result of the decision, the U.S. Citizenship and Immigration Service (“USCIS”) is expected to immediately recognize, for federal immigration purposes, same-sex marriages that were valid in the jurisdictions where they were performed.

Department of Homeland Secretary Napolitano, in a statement issued after the decision, suggested that she would work with other federal agencies towards “implement [the Court's] decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

Immigration Benefits Available to Same-Sex Married Couples

Now that DOMA has been struck down and subject to immediate implementation by USCIS, same-sex individuals legally married in any jurisdictions recognizing same-sex marriage should be eligible to apply and obtain a number of immigration benefits.  Among such benefits are the right to be petitioned for by a same-sex U.S. citizen spouse; the right to be granted derivative status as the spouse of a non-immigrant visa holder, or to be included in a same-sex spouse’s green card application; to obtain derivative asylee or refugee status; and the right to be considered as a qualifying relative for purposes of cancellation of removal.

For example, same-sex spouses should now be eligible for H-4, L-2 or TD dependent visas, in addition to being eligible for derivative spouses’ green cards.   Obviously, same-sex spouses would also be eligible to be sponsored on the basis of family immigration by a US citizen spouse.

We would like to point out that while DOMA was struck down effective yesterday, we do not know yet whether USCIS will need to revise some of its policies, including officer training, in order to comply with the court’s decision and to afford immigration benefits to those same-sex spouses who are eligible.   We expect that there would be at least some period in which federal agencies, including USCIS, would take to review and adjust its policies, guidelines and personnel training.   We hope that such period is as short as possible, but we are prepared to assert these newly-created rights and benefits on behalf of applicants and our clients.


We applaud the Supreme Court’s decision and we invite readers who may benefit from the newly-enabled federal benefits to contact us if we can be of any assistance.   While the initial weeks or months following the decision may be surrounded by some uncertainty, we hope that USCIS would be able to update its guidelines and allow for true equal treatment to same-sex married applicants.    Also, we will continue monitoring this topic and provide any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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