AskVisalaw.com

Posted on: July 23rd, 2018
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In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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QUESTION: I filed an I-485 with an application for employment authorization and advance parole based on my marriage with a U.S citizen. It has been five and half months, but I still haven’t received any updates other than my biometrics appointment. I have done three service requests but have received no response. What can I do? I need the advance parole to go back to my home country as my father is sick.

ANSWER: It is not unusual right now for it to take 5 or 6 months for USCIS to issue the card that serves as a combination Employment Authorization Document (EAD) and Advance Parole travel document. Sometimes it is taking a bit longer. This is especially true where USCIS has issued a Request for Evidence for the I-485 application or the applications for the EAD or Advance Parole. I encourage you to continue to make service requests with USCIS, or even to request assistance from your Congressman’s or Senator’s office (if you have an attorney representing you, ask them first before doing this). However, USCIS’s responses to these inquiries are usually not very helpful. These inquiries are most helpful where a case is taking a long time because it has “fallen between the cracks” and these inquiries can help to get the case back on track.

However, if your father is extremely sick, for example to the point where waiting for USCIS to issue the advance parole might result in him passing away before you are able to visit with him, you might be able to get USCIS to issue the advance parole document under their Expedited Request procedure. At a minimum, you would need a letter from his doctor to prove that he is that sick. The current procedure for asking for an Advance Parole to be issued under Expedited Request is to make an Infopass appointment with your local USCIS field office (if your local USCIS field office does not have any infopass appointments available in the time you need, you could try going to the USCIS office without an infopass appointment) and to file a new application for Advance Parole, and additional required proof, including proof of the emergency (you shouldn’t have to pay a filing fee where your I-131 application is based on a pending I-485 application, but sometimes new filing fees for the form are required to be paid). Otherwise, you will just need to wait a little bit longer. It should come soon.

Other situations where USCIS may consider expediting an application include:

  • Severe financial loss to company or person;
    • Emergency situation, for example where the applicant is gravely ill;
    • Humanitarian reasons, for example, the outbreak of war in the applicant’s home country;
    • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States, for example, an organization broadcasting in regional areas to promote democratic interests;
    • Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
    • USCIS error; or
    • Compelling interest of USCIS.

Please note, however, that USCIS will normally only grant an expedite request in more extreme situations. The procedure for requesting the expedited processing of other petitions and applications is often different than the procedure for requested expedited processing of an application for Advance Parole document explained above. Expedite Processing is not available for those petitions that can be filed with USCIS using Premium Processing.

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QUESTION: I am in the US is E-2 status. My husband is a Permanent Resident and he filed an I-130 petition for me last year. My priority date is available now. Can I file an I-485 while my I-130 is still pending?

ANSWER: You can file the I-485 Application for Adjustment of Status while the I-130 Immigrant Petition is still pending (meaning it has been filed with USCIS and you have the Receipt Notice, but has not yet been approved), assuming you meet all other eligibility requirements, including that the priority date for the petition has been reached under the DOS Visa Bulletin.

Just a bit of warning, though. It appears that you are relying on the DOS Visa Bulletin’s “Dates for Filing” chart, rather than the “Final Action Dates” chart. Please note that you can only file an I-485 based on the “Dates for Filing” chart in a month where USCIS has authorized use of the “Dates for Filing” chart. Each month, a few days to a week after the DOS Visa Bulletin is posted for the following month, USCIS will issue their own statement as to whether the “Dates for Filing” chart for that month can be used for the early filing of

I-485 applications in that month. For some months, USCIS will not accept I-485 applications unless the priority date is current on the “Final Action Dates” chart of the Visa Bulletin. To check whether the USCIS allows you to use the “Dates for Filing” chart for each month, go to https://www.uscis.gov/visabulletininfo.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.