Dear Sophie: Will October 2020 Visa Bulletin changes expedite my immigration case?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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Dear Sophie:

I’ve been waiting for years for my green card. Is there any way to expedite my case? What does the October shift in Visa Bulletin priority dates mean for me?

—Waiting in Woodside

Dear Waiting:

Thanks! There are a lot of ways to speed up the immigration process. Great news — last week the State Department released the October 2020 Visa Bulletin, which significantly reduces the waiting time for many folks from around the world seeking green cards. Basically final action dates progressed for EB-1, EB-2 and EB-3 and are all current now if you can use categories besides being born in India or China! Feel free to check out my recent podcast on seven ways to expedite an immigration case and check out our upcoming free educational webinar on October 8 for the latest on H-1Bs and other immigration updates.

If you were born in India or China, dates for filing for Adjustment of Status and the National Visa Center also sped up significantly for individuals in these categories. Here’s a typical question I receive: “I’m currently in the U.S. in valid nonimmigrant status. If I was born in India or China, can I file my I-485 in October 2020?” See below to check your priority date and talk to an immigration attorney to see what you can file in October 2020!

Is my China/India priority date current in October?

Here’s an overview of how to figure out whether you can file your I-485 this month if you need to use the categories of being born in India or China:

• Step 1. Double-check your I-140 I-797C approval notice to determine your category and priority date:
  • Sec. 203 (b)(1) → EB-1 Category
  • Sec. 203 (b)(2) → EB-2 Category
  • Sec. 203 (b)(3) → EB-3 Category
• Step 2. Check out the October Visa Bulletin. To understand the Visa Bulletin in more detail:
  • The number of green cards the U.S. issues each year is capped based on the type of green card and the green card candidate’s country of birth
  • As my podcast on priority dates explains, it is the date your green card petition was submitted or the date your employer submitted your PERM labor certification application.
• Step 3. Find the date in the cell at the intersection of your category and country.

Excerpt from October “Dates For Filing Of Employment-based Visa Applications”:

• Step 4. Is your priority date before the date in the cell?
  • If no: Please wait until your priority date is current or get creative (below).
  • If yes: Congratulations, you may be able to file your I-485 in October 2020! Talk to your attorney ASAP.
• Step 5. Get creative if necessary:
  • If you need or want to proceed without your I-140 petitioning employer in filing your I-485 (or if you want to get into a higher preference category) you can also consider filing concurrent self-petitions in EB-1A or EB-2 NIW. Talk to an attorney ASAP about whether you qualify.
  • You can also ask your attorney about cross-chargeability if you’re married to a spouse born in a different country.

Other ways to expedite your immigration case

Check case processing times

For cases already filed with USCIS, make sure you understand the USCIS case processing times page. You can use that page to find out how long USCIS typically takes to process a petition or application such as yours and whether you should contact USCIS about yours if it is already pending. If you’ve been waiting beyond the normal processing time for a decision on your case, there’s an issue that needs to be addressed.

To use the USCIS case processing times web page, you will need to know what USCIS service center your green card petition (Form I-140) or adjustment to permanent resident status (Form I-485) was sent to:

When you select the form type and service center on the page, you will get the estimated time that USCIS takes to make a decision on that form, as well as the receipt date for a case inquiry. If USCIS received your form on or before the receipt date listed, then you or your attorney should track the status of the case and consider making an inquiry.

Add premium processing

Another option to prompt action on your case may be for you or your employer to speed up your pending petition with premium processing, if you haven’t already. Premium processing is only available for select nonimmigrant and green card petitions. With premium processing, petitioners can submit Form I-907 and pay a $1,440 fee to have USCIS make a decision on their case within 15 business days. Please note, it used to be 15 calendar days and starting October 2020 it’s going to be 15 business days (which can be 21 calendar days).

If your employer sponsored you for an EB-1A, EB-1B, EB-2 or EB-3 green card or you self-petitioned for an EB-1A, and you are still waiting for a decision on your I-140 petition, then you can still request premium processing. However, the EB-2 NIW category is not eligible for premium processing.

Expedite request

Another option to speed up a case is to submit an Expedite Request to USCIS. I recommend you consult an immigration attorney before heading down this path to make a strong argument in your favor. An expedite request will only be considered if you can make a strong case that any of the following applies:

• You or your employer will experience severe financial loss.
• Urgent humanitarian reasons.
• U.S. government interests, including national interest, public safety or a defense matter.
• USCIS made a mistake.

InfoPass

Making an appointment to meet with a USCIS officer at your local USCIS field office to discuss your case could also move your case along. You must call the USCIS Contact Center to make an appointment since you can no longer make one online. You should also consider bringing an experienced immigration attorney with you to this meeting.

Support from elected officials

Asking your U.S. senator or representative to help you deal with USCIS can draw attention to your case — and possibly get a quicker response. Most senators and representatives offer assistance to people who live in their district or state in their dealings with federal agencies, including USCIS.

Most senators and representatives make it possible for you to request help with your immigration matter by filling out a form on their website. Otherwise, you can call your senator or representative’s local district office. Usually, you will have to fill out a privacy release form so your senator or representative — or one of their staffers — can inquire about your case with USCIS. Attorneys can support you with this process as well.

USCIS ombudsman

If dealing directly with USCIS yields no progress in your case, you can file a request to the Office of the Citizenship and Immigration Services Ombudsman for assistance. To proceed on this path, you must have tried to resolve your issue directly with USCIS and your case must be at least 60 days past the posted processing time.

Mandamus lawsuit

The final option would be to consult with your attorney to file a Writ of Mandamus, which means suing DHS and possibly the FBI in federal court. It is a lawsuit filed against a government agency that asks a court to force the agency to fulfill its duty of making a decision on your immigration case. Proceed with caution as the agency could “speed up” processing by quickly denying your case! Definitely seek the legal advice of an attorney if you’re considering this.

Wishing you every success,

Sophie

Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!