New green card rules: early application for thousands

By Jamie Gorton

The changes announced on the October 2015 Visa Bulletin are ground-shaking. It is now possible to apply for a green card before your priority date becomes current.

The old rules: you can’t apply for your green card until the “priority date” becomes current. In other words, you have to wait until there must be enough visas for the Department of State to give you a visa. You can’t apply for your green card early. Because you can’t file form I-485 early, you can’t file for your work authorization either.

The new rules: every month USCIS and Department of State will publish a calendar that shows who can apply early. Because you can apply for your I-485 early, you can also apply for Work Authorization and Advance Parole early. This has the most impact on employment-based visa applications.

Advance Parole, as regular blog readers know, is the secret immigration weapon that can help thousands of people who aren’t otherwise eligible obtain green cards by “paroling” them into the United States. Once, this was an obscure doctrine of immigration law. But time and again, it has been the favorite tool of President Obama’s administration. Once again, Advance Parole will be a huge benefit to many people, especially people with old approved I-140 applications, who will be able to travel while their I-485 is pending.

Thousands of people, especially people from China, India, and the Philippines, will be able to file these important applications starting October 1, 2015.

Example: Aditya has an approved EB-3 petition, but he is from India. Under the old rules, only people whose priority dates are from before December 2004 can apply for LPR, EAD, and AP (lawful permanent residence, employment authorization document, and advance parole). Since Aditya was just recently approved, he will need to wait for over 10 years based on the old rules. Under the new rules, he can apply for LPR, EAD, and AP as of October 1, 2015. It will still take many years for the green card to be approved. However, Work Authorization and Advance Parole are available while Aditya waits.

Family Based Changes: Although Attorney Gorton expects that these changes will help more employment-based applicants than family-based applicants, the same new rules apply. Family-based applicants will have a new calendar of dates that control when they can apply early. Unlike the massive jump in certain EB-3s, most family-based applications will enjoy a modest 7-18 month early application period.

Example: Joao from Brazil (not a special chargeability country) received an approved I-130 from his mother, a U.S. Citizen. Joao is an unmarried adult. His I-130 was approved on January 1, 2010 (over five years ago). However, the early application date as of October 2015 is May 2009, which means Joao needs to continue waiting before he can apply. However, when he is able to apply he will be able to apply about a year sooner than he could have otherwise. While he waits, Joao will be able to work legally, have a social security card, and travel with advance parole.

Special note: Unmarried adult sons and daughters of US Citizens who are Filipino are eligible to apply more than 4 years in advance!

We are very excited about this change. Immigration lawyers have been asking for changes like this for a long time, and now thousands of people, especially from Mexico, India, China, and the Philippines, will be able to start the path to citizenship early.

Browse our website to learn more about immigration law and green cards and discover how Gorton Law LLC can assist you. You can also give us a call at (617) 902-0100​.

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