Rare opportunity for certain family based applicants: Guest Post by Attorney Ron Gotcher

Quite unexpectedly, the Department of State has advanced the cutoff date for the family based 2A category to “current” for the month of August. The family based 2A category is reserved for spouses and unmarried children under age 21 of U.S. lawful permanent residents (“green card” holders).
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. 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 vitally important 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 30th). 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.

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. If you decide that you don’t wish to apply, then that will be your decision and not something that is forced on you by circumstances due to ignorance of the facts.

To help folks understand this development a bit better, I’ve put together the following 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.

2. Does it matter if I do not have an approved I-130 yet?
No. If you 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.

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.

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. You will be able to get an I-485 on file, however, 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.

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One thought on “Rare opportunity for certain family based applicants: Guest Post by Attorney Ron Gotcher

  1. This is all great if the spouse is in the U.S. what if the spouse is in India? CP takes time and there is no EAD and AP for them.

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