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Follow Up Questions from the Adjustment of Status Debacle Addressed


This Update addresses some of the most common questions we are receiving in connection with the USCIS announcement yesterday that they would be rejecting adjustment of status applications filed July 2.

My application was filed before July 2, what does the retrogression mean to me?

Many applicants for adjustment of status whose applications were filed before July 2, 2007 are concerned about the effect of the retrogression on their pending applications. Most cases could not be filed before July 1, as the priority date did not become current until July 1. Any case with a priority date that became current in June, however, if properly filed and received by USCIS on or before June 29, will remain pending, even though the visa numbers for fiscal year (FY) 2007 have been used up.

The administrative processes that led up to the July 2 rejections may have a benefit for applicants whose adjustments were languishing for a long time prior to June. Our office is finding that many old cases were granted by USCIS as they tried to clear their backlog and use up visa numbers before July 1. If an applicant’s adjustment was not yet granted (and realistically, only persons with applications filed before March of 2007 have any chance of having been approved), then it will remain pending at least until FY 2008 begins (on October 1, 2007).

My I-140 was filed on July 2, 2007 with my I-485. What will happen to it?

USCIS has confirmed that it will continue to accept I-140s in spite of the retrogression. They have also confirmed that an I-140 filed on July 2 will be accepted for processing if the I-140 filling fee was paid with a separate check from the I-485 filing fee. Our office always uses separate checks for the I-140 and I-485, so the I-140s we filed on July 2 should be retained by USCIS for processing. We expect to receive receipts in the coming weeks.

What will the priority dates be on October 1, 2007?

We do not yet know what cutoff the Department of State will set for October of 2007, and we will likely not know until August or September. We are optimistic, based on past discussions with the Department of State, that the employment-based first preference will return to “current.” We are also optimistic that the employment-based second preference will return to “current” for all applicants except those born in India and mainland China. We expect that the priority dates in the third preference, and for India- and China-born applicants, will remain retrogressed in Fiscal Year 2008.

I have heard that I should file my adjustment of status application in July, even though it will be rejected. Why is that?

The American Immigration Lawyers Association and the Academy of Business Immigration Lawyers, of which we are members, have advised attorneys to offer clients the option of filing their adjustment of status applications even though they will be rejected. That recommendation has been circulated on the Internet, and many people have understood that advice as a recommendation to file an application that people know will be rejected. Our firm does not have a blanket recommendation that people should file an application that will be rejected or not; however, we are making our clients aware of that option.

When considering whether to incur the fees and costs of preparing an application that we expect will be rejected by USCIS, clients should consider the chances that making such a filing will benefit their situation at any time in the near future. Of course, the chances of success in any lawsuit are difficult to predict. It is possible that a court will grant no relief to anyone whose priority date became current in July; it is possible that a court will only grant relief to persons whose cases were filed on July 2; and it is possible that a court will grant relief to any person who could have filed in July, whether they filed or not.

It is also possible that a court will only grant relief to persons whose cases were filed any time in July, but rejected. Clients considering filing an application for adjustment of status now will have to decide whether it is worth the time and expense of filing so that they can be included in this particular group.

In the interest of presenting clients with all possible options, we also advise that clients wishing to challenge the application rejection policy have another option, namely, to file a lawsuit of their own challenging USCIS’s unwillingness to accept their case. Of course, a person wishing to file such a lawsuit would bear all costs of the case him- or herself, and the chances of success in litigation are always difficult to predict.

We understand that the information about whether to file an adjustment or not is confusing, but ultimately clients will have to decide whether the costs are worth the possible benefit. If you have an adjustment application in preparation with our office, or are eligible to file for adjustment, please advise us whether or not you would like us to prepare your application for filing, even though we know your application will be rejected.

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