As a result of COVID-19 and the closings of U.S. embassies and USCIS for long periods of time, the USCIS and DOS approved far fewer permanent residence applications (“Green Cards”) in FY2020. As a result, the start of the new fiscal year, FY2021, has heralded a unique window of opportunity for many clients to file an adjustment of status application in October 2020.

Both Final Action Dates and Application Filing Dates have advanced by a considerable margin.  Both tables are based upon the immigrant’s priority date, which is the date of the filing of either a PERM (Labor Certification) application or in certain cases, an I-140 petition.  The “Final Action Date” is the date whereby the USCIS can APPROVE an adjustment of status application during that month. It is very unlikely, if not impossible, that a newly filed I-485 would be approved during the early months of FY2021.  HOWEVER, the big news here is that the priority dates for Application Filing have moved up considerably.  This means that an applicant can at the very least submit an adjustment of status application for obtaining U.S. permanent resident status (even though it may not be reviewed or adjudicated for some time). The benefits of moving forward with such an application are explained further below.

Most notably, the October 2020 bulletin enables Indian nationals in the EB-1 category with a priority date of September 1, 2020 or earlier to file their I-485 forms this month.  Indian Nationals in the EB-2 category can file if they have a priority date of May 15, 2011 or earlier.  The biggest news is for Indian Nationals who have EB-3 I-140 approved petitions, as they can file in October if their priority date is January 1, 2015 or earlier.  For all other categories and for all countries, except India and China, the categories are all current, meaning that there is no additional wait to file for adjustment of status.  This situation has not occurred for many years.

The Department of State expects a huge increase in the annual limit to employment-based immigration visas, to an all-time high of 261,000, in their Fiscal Year 2021 (October 2020 – September 2021).  The Department further notes that “Adjustment of status applications filed early in FY 2021 are most likely to be adjudicated during the upcoming fiscal year.”

We therefore encourage any applicant who meets the current guidelines to discuss pursuing this option to file for adjustment of status application in October with their employer as soon as possible.  SW Law is acting quickly to assist with these applications, and we have already started reaching out to employers about taking advantage of this time-limited opportunity.  Please note that we cannot predict what will happen in November 2020 – if these priority dates will further advance, stay the same, or even retrogress again, and that is why applicants should move quickly to prepare and submit the adjustment of status application within the month of October 2020.

Benefits of filing an Adjustment of Status application are twofold:

  • The applicant can obtain Employment Authorization Documents (EAD) and Advance Parole (AP) during the pendency of the adjustment of status application, thus potentially obviating the need to extend a non-immigrant visa. Our firm generally recommends extending the non-immigrant visa as a backup, but this is an option that should be weighed appropriately, as it potentially can save the employer the cost of maintaining a non-immigrant visa.
  • Portability: 180 days subsequent to filing the I-485, the applicant may be able to change employers (to a position with a similar role, for a comparable salary) and maintain their immigration status.

Fee Increases and New Filing Requirements of Note:

The filing fees for the I-485 will be increasing. Currently, adjustment applicants pay a filing fee of $1,225.  This fee covers the adjustment application itself, as well as applications for initial EADs and AP.  It also covers future EAD and AP renewals while the adjustment case is pending.

The new fee structure, starting from October 2, 2020, eliminates this “bundled” fee, and instead requires separate fees for new and renewed EADs and APs.  The cost to file an adjustment application with ancillary benefits will increase to $2,270, and applicants will be required to pay fees of $550 and $590, respectively, for each EAD and AP renewal.

In addition, all I-485 applications currently require Form I-944, Declaration of Self-Sufficiency. This is an onerous, very detailed 18-page form that was subject to a court injunction which however was recently lifted.  Therefore, this form and all documentation supporting Self-Sufficiency must be filed with the I-485 form.

SW Law will continue to monitor this issue with both USCIS and the Department of State, and send updates accordingly, while we also move quickly to submit applications for Adjustment of Status.

The Department of State’s Visa Bulletin is subject to approval by the U.S. Citizenship and Immigration Services. The October 2020 Bulletin can be found here.