Chugh, LLP – Attorneys and CPAs

Of: Andcqueline Gonzalez Valle

There have been recent reports of employment-based I-485 petitions being approved prematurely.

The approval process

According to 8 CFR 245.2(a)(5)(ii), an immigrant visa must be available for an application for lawful permanent resident status (Form I-485) to be approved. United States Citizenship and Immigration Services (USCIS) is notified when an immigrant visa becomes available based on the processing dates listed in the Department of State’s (DOS) Action Final Dates Table in the Visa Bulletin. USCIS deducts a visa number only upon final adjudication of the AOS application and has confirmed that it does not reserve or preallocate a visa number at any time prior to its final adjudication (ie, not at the time of filing, not at the time of the interview schedule, not at the time transfer to a USCIS field office, not with the issuance of a request for evidence, not with the approval of the underlying immigrant visa application, not with the granting of a transfer of the underlying underlying application, etc.).

Approvals made by mistake

However, numerous reports indicate that USCIS erroneously approved applications for adjustment of status in a month when the applicant’s priority date was not current in the Final Action Date table in the visa bulletin. This is extremely problematic for applicants whose applications have been incorrectly approved as they face termination of their permanent residence and the stability of their legal status or a challenge to their status in the future when applying for citizenship.

Concerns for applicants

Under 8 CFR 246.1USCIS may revoke an applicant’s erroneously approved permanent residence by issuing a notice of intent to revoke within 5 years of the date of approval if it obtains information indicating that the individual was ineligible for lawful permanent resident status at the time approval. In addition, section 218 of the INA requires an applicant for naturalization to demonstrate that he or she has been lawfully admitted to the United States for permanent residence. Therefore, USCIS could deny an application for naturalization if the application for adjustment of status to permanent resident status was erroneously approved, even if due to USCIS error, and initiate proceedings to revoke resident status legally permanent at that time.

Potential solutions

Because of the extremely harmful consequences of a prematurely approved Form I-485, applicants and their attorneys should verify that a visa number is available on the date the applicant’s Form I-485 is approved. An applicant who receives a Notice of Intent to Rescind (NOIR) his or her erroneously approved permanent resident status may respond by requesting reinstatement of his or her basic immigration status and reopening the Form I-485 petition, along with applications for employment authorization and/or or advance parole. Those who did not receive a NOIR but believe their Form I-485 was improperly approved can contact USCIS through Contact center and requests that the case be reopened.

Alternatively, the applicant may file a Motion to Reopen (Form I-290B) with one filing fee for each Form I-485 applicant. If USCIS does not respond to this request or the motion to reopen is not granted, it is recommended that you contact either the USCIS Ombudsman or a member of Congress for further assistance.

Conclusion

If you believe your application was approved in error, have case-specific questions, or would like more information, please contact the trusted immigration attorneys at Chugh, LLP.

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