ARTICLE
6 January 2025

The Pitfalls For Filing For Adjustment Of Status When Dependents Are Outside Of The U.S.

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Fakhoury Global Immigration

Contributor

At Fakhoury Global Immigration, our motto is Global Vision, Personal Attention. We provide our clients with the most comprehensive legal immigration services available while tailoring them to their specific requirements. Offering a full range of immigration legal services, we aspire to be the one-stop solution for all our clients’ global and U.S.-based needs. Our team of lawyers and paralegals are specialists in all U.S. and major international visa classifications. We provide comprehensive and peerless legal services that are cost-competitive, custom tailored, fully compliant, and successful in achieving our clients’ objectives.
Applicants for Adjustment of Status (AOS) are required to be physically present in the U.S. at the time of filing their Form I-485, Application...
United States Immigration

Applicants for Adjustment of Status (AOS) are required to be physically present in the U.S. at the time of filing their Form I-485, Application to Register Permanent Residence or Adjust Status. Although ideally the foreign national applicant's dependents are in the U.S. and filing an AOS application as well, there may be situations where they reside outside of the U.S. at the time of the main applicant's AOS filing. This article explores some of the potential challenges that AOS applicants may face when trying to include their overseas dependents in the process.

The regulations on Adjustment of Status1 were crafted with the presumption that the family unit would be physically together within the U.S. and are not geared toward having family members move through the process separately or from abroad.2 Significant complications can arise, therefore, if the dependents are not physically present in the U.S. and filing an AOS application along with the main applicant.

One of the primary requirements to adjust status to that of Lawful Permanent Resident (LPR) is to first be admitted or paroled into the U.S. Pursuant to INA 214(b), any non-immigrant in a visa classification other than H or L cannot obtain an immigrant visa if they have an immigrant intent. Therefore, most commonly, family dependents, are typically in the H or L non-immigrant visa category which legally allows for dual intent.3

If the primary AOS applicant files their application to adjust status to that of LPR while in H or L status, once the AOS application is approved, they are an LPR, and no longer hold non-immigrant status. This means that their dependent family members who remain abroad are no longer eligible to enter the U.S. in the dependent non-immigrant H-4 or L-2 visa category. Unless the dependent spouse qualifies for a non-immigrant H-1 or L-1 work visa based on their own occupation, the dependent spouse and any children can no longer enter the U.S. in a dual intent non-immigrant status for the purpose of adjusting.4

If the primary AOS applicant has filed their AOS application and it is still pending with USCIS, then the dependents may avail themselves of a dependent H-4 or L-2 visa to enter the U.S. Once in the U.S., they may file their own AOS applications as dependents, with the caveat that the primary applicant's priority date5 must be "current" according to the Depart. t of State's (DOS) monthly Visa Bulletin, and according to whether USCIS is accepting applications according to the bulletin's Final Action Dates chart or Dates for Filing cha. 6 So, if the dependent family members are in the U.S., but the primary applicant's priority date has retrogressed, they will not be able to file their own AOS applications until . priority date does become current for them. They again face the risk of not being able to maintain non-immigrant status if the main applicant's AOS application is approved w. the dependents are waiting for the priority date to become current.

Applicants can only file AOS applications with USCIS or arrange a consular interview abroad after the main applicant files their AOS application with USCIS, provided the priority date remains current.

If the main applicant's priority date retrogresses before the dependents come to the U.S. or go through the consular process, they will not be able to file their AOS applications (or the consulate will not be able to move forward with their consular applications) until the priority date becomes current again.Again, there is no way to forecast when a priority date may become current.

If, however, the foreign national applicant's AOS is approved, thus becoming a permanent resident while her or his dependents remain abroad, one option would be for the dependents to apply for their green cards through a family-based petition. This requires the filing of Form I-130, Petition for Alien Relative with USCIS, and once approved, proceed with consular processing for the immigrant visa. The processing times for this process, however, can be very lengthy.

An alternative to this option would be filing of Form I-824, Application for Action on an Approved Application or Petition, with USCIS, to have USCIS notify the consulate of the main applicant's approved AOS. The Form I-824 can be filed concurrently with the main applicant's AOS application, or after the primary applicant's I-485 is approved. This application is a request for USCIS to notify the relevant consulate abroad that the dependents intend to apply for an immigrant visa and follow-to-join the main applicant in the U.S. Another drawback here is that historically, processing times for Form I-824 have been very lengthy, often exceeding 1-2 years.

Child Status Protection Act (CSPA)

Another complication arises when the primary applicant has a dependent child who is at risk of "aging out" of eligibility to obtain a green card as a dependent. Immigration law allows the dependent spouse and children of the primary applicant to obtain lawful permanent status on the basis of the primary applicant's eligibility as long as they remain a qualifying dependent. The Immigration and Nationality Act defines a child as a person who is unmarried and under 21 years old.7 To provide some protection for children who are aging out, the Child Status Protection Act (CSPA) was passed in 2002. CSPA allows methods for dependent children to retain their eligibility beyond their 21st birthday in narrow circumstances.8

In order for a dependent to benefit from CSPA (locking in their age before aging out), they must seek to acquire LPR status within one year of a visa becoming available. This requirement can be met in multiple ways, including by filing Form I-485, Application to Register Permanent Residence or Adjust Status, applying for an immigrant visa with the consulate (submitting Form DS-260 and paying visa fee), or by properly filing Form I-824. Note, however, that dependents cannot proceed with consular processing until they have an approved Form I-824 indicating that USCIS has notified the consulate of the dependent's approved I-485.

The determination on whether a child has aged out or is at risk of doing so is further complicated by the fact that USCIS and DOS calculate the CSPA differently when it comes to determining when the immigrant visa becomes available. While USCIS has released policy guidance9 stating that filing Form I-485 on the basis of a priority date that is current either according to the Dates for Filing chart or the Final Action Dates chart is sufficient to qualify the child for CSPA protection, DOS policy is that a visa is only considered available for CSPA protection purposes when the priority date is current on the Final Action Dates chart.10

Where the dependent child is outside of the U.S., the primary applicant can take an initial step to protect the child from aging out by filing Form I-824. Doing so allows the applicant and the child to establish that she or he sought to acquire permanent residency status within one year of a visa becoming available per CSPA. Therefore, Form I-824 must be filed when the priority date is current; if the priority date retrogresses before filing the Form I-824, doing so may not offer CSPA protection.

Because of the policy difference between USCIS and DOS on their interpretations of visa availability, some situations may arise where the primary applicant has filed Form I-485 along with the Form I-824 for their dependent child according to the Dates for Filing chart, but the CSPA protections would still not kick in unless the priority date is current in the Final Action Dates chart. If the child's CSPA calculation is such that they age out before the main applicant's Final Action Date is current, the child will still be considered to have aged. Had they been present in the U.S., however, they would have been protected from aging out by being able to file an AOS application based on the Dates for filing chart. For this reason, the best course of action is to have the child physically present in the U.S. to file Form I-485.

Applying for permanent residency abroad

The process for applying for an immigrant visa abroad includes, first the filing of Form I-824 with USCIS to request that the consulate be notified of the dependents intentions to apply for an immigrant visa abroad and follow-to-join, followed by filing a DS-260, provided the priority date remains current. Note that there is an additional filing fee for filing Form I-824, in addition to a legal fee if it is prepared by counsel. In addition, processing times can range from 12-36 months for the processing of the Form I-824, which presents a great deal of uncertainty as to whether the priority date will remain current once it has been approved. If family members do not have eligibility to enter the U.S. in a valid non-immigrant status, they may be separated for an extended period of time, months, or even years, if they become stuck abroad waiting for the processing of the Form I-824, consular processing of the immigrant visa, and/or for the priority date to become current.

Conclusion

Although it is preferable that a primary applicant's family reside with her or him in the US during the adjustment of status process, this is not always a feasible option. Therefore, because of the complicated issues that arise when a primary applicant seeks to adjust status in the U.S. while his or her dependents are abroad, it is advisable that the applicant consult with an immigration attorney to determine the most appropriate course of action given the applicant's particular circumstances.

Footnotes

1. See USCIS Policy Manual V7, B, Ch 2; 8 CFR 245; or 9 FAM 502.1-1(C)(2)

2. For more information, please see the USCIS's webpage, "Bringing Children, Sons and Daughters to Live in the United States as Permanent Residents": https://www.uscis.gov/family/bring-children-to-live-in-the-US

3. See 8 CFR 245.1(a)

4. See INA 214(b)

5. See the USCIS's webpage on "Visa Availability and Priority Dates" for more information: https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates

6. For the adjustment of status charts, go to https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin

7. See INA 101(b)

8. For a more detailed discussion of the USCIS requirements related to CSPA, please see https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa and https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7

9. See https://www.uscis.gov/newsroom/alerts/uscis-updates-child-status-protection-act-cspa-age-calculation-for-certain-adjustment-of-status

10. See 9 FAM 502.1-1(D)(4)(a)(3)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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