On February 4, 2008, USCIS issued a memo regarding the FBI name check of I-485 Adjustment of Status applications. Now, USCIS may approve I-485 application even if the related name check process has not been completed, provided that the name check has been pending more than 180 days and the I-485 meets all other relevant requirements. We received a lot of inquiries regarding this new policy, and provide you with the following FAQs.

What is the 180 day rule?

The 180 day rule applies to I-485 applications whose name check processes have been pending for more than 180 days. The policy states that under these circumstances, an I-485 can be approved before the name check is complete, provided that the I-485 meets all other relevant requirements.

What if there are problems in the result of a name check after an I 485 has been approved?

If the name check concludes that the applicant is ineligible for a green card, the green card will be revoked.

When will USCIS implement the 180 day rule?

USCIS will implement this policy sometime in the next a few months. The memo describing this policy was issued on February 4; however, it will probably take a few months for the policy to go into effect.

What is the main benefit of the 180 day rule?

In the past, the name-check process has caused enormous delays for pending I 485 applications. This policy will limit those delays.

Who will benefit from the 180 day rule? Will it expedite the processing of my application?

This policy will benefit applicants whose name checks have been pending for at least 180 days and whose immigrant visa numbers are available based on the current Visa Bulletin or who have already taken the immigrant visa numbers before.

Normally, an applicant’s immigration visa number is available only if his/her priority date is prior to the “cut-off” date in the Visa Bulletin. However, in USCIS’s adjudication practice, immigration officers may decide some applications have already taken visa numbers, and they may approve an I-485 application even if the case’s priority date is behind the “cut-off” date in the Visa Bulletin. This practice happens to some of our clients. For example, the priority date of Dr. Li’s EB2 I-485 application is October 10, 2004. His case has been pending in USCIS until January 2008. Based on the visa Bulletin of January 2008, Dr. Li had no visa number then because the “cut-off” date in the Visa Bulletin of January 2008 was January 1, 2003. Surprisingly, his I-485 was approved in January 2008. Somehow, the immigration officer deemed that Dr. Li’s application had already taken a visa number when it was available for Dr. Li’s application category. However, it is unclear at this point of time how USCIS determines visa number availability in this kind of situation.

If your circumstances are different, then this policy will not expedite the processing of your application. For example, if a visa number is not currently available to you, this policy will not benefit you right away.

Will the 180 day rule increase the availability of visa numbers?

No. This policy only applies to applicants who already have visa numbers available. For the new rule to apply to your case, you must have a priority date before the specified cut-off date in the current visa bulletin.

Given this new policy, should I send an inquiry to USCIS to push my case?

No, at least not right now. It will take some time for this rule to go into effect, so you shouldn’t expect immediate results.

Furthermore, this rule only applies to applicants who are specifically waiting on name checks. If your application is being delayed for other reasons—for example, if no visa number is available to you—then this rule does not apply to you. On February 13, USCIS has confirmed that they are conducting “sweeps” to find adjustment of status cases that can be reviewed for adjudication based on the new name check policy. The USCIS hopes to have identified and taken action on these cases by April 30, 2008. You may want to hold off inquiries until then.

Given this new policy, does it make sense for me to take a writ of mandamus (WOM) if my case is stuck in name check?

Possibly. Depending on your situation, this policy might provide a legal basis for a WOM.

In the past, some I-485 applicants have filed WOMs when their cases have been delayed for a very long time—more than the normal processing time for an I-485. In some of these cases, the courts have indeed pushed USCIS to expedite the case. However, since there is no specific law requiring USCIS to process I-485s within a certain period of time, not all of these cases have been successful. Some courts just dismissed these cases.

This policy provides some legal basis for a WOM, since it establishes a certain time frame for the name-check process. If your application has been delayed for more than 180 days because of the name-check process, you might be able to file a successful WOM.

For advice about your specific situation, we recommend that you contact an experienced immigration attorney.

What is a Priority Date?
The priority date is the date that an alien initially expresses his/her intent to immigrate to the United States through an appropriate petition. Namely, for employment-based applicants, this date is the date of receipt by the State Workforce Agency for a Labor Certification application, or the date that an immigrant preference petition (does not require a labor certification application, e.g., extraordinary ability, outstanding researcher, national interest waiver) is filed, whichever is the earlier. For family-based applicants, this is the date the USCIS first received the immigrant petition (Form I-130) filed on the alien’s behalf.
What is a cut-off date?
Because certain aliens are subject to restrictions on the annual immigrant visa quota and that quota has been reached in some categories, the State Department publishes a monthly waiting list, called the Visa Bulletin, based on the priority date to regulate who is eligible to apply for adjustment of status or complete consular processing in order to become a permanent resident. On that list, the State Department provides a date for each category of preferences for both employment-based and family-based immigrant applications. That visa availability date is known as the cut-off date. Please find visa bulletin and current cut off date at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nation-wide in all aspects of U.S immigration laws. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past eleven years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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