Erroneous Approval- What to Do If USCIS Approves an Employment-based I-485 When the Priority Date Was Not Current

By: Jacqueline Gonzalez Valle

There have been recent reports of prematurely approved employment-based I-485 applications. 

The Approval Process

Under 8 CFR 245.2(a)(5)(ii), an immigrant visa must be available in order for an application for lawful permanent resident status (Form I-485) to be approved. The United States Citizenship and Immigration Services (USCIS) is informed of when an immigrant visa becomes available based on the processing dates listed in the Department of State’s (DOS) Final Action Date Chart from the Visa Bulletin. USCIS subtracts a visa number only upon final adjudication of the AOS application, and has confirmed that it does not reserve or pre-allocate a visa number at any point prior to its final adjudication (that is, not at the time of filing, not at the time of interview scheduling, not at the time of transferring to a USCIS Field Office, not with the issuance of a Request for Evidence, not with the approval of the underlying immigrant visa petition, not with the granting of a transfer of underlying basis request, etc.). 

Approvals Made in Error

However, numerous reports indicate that USCIS has erroneously approved applications to adjust status in a month when the priority date of the applicant was not current under the Final Action Date chart of the visa bulletin. This is hugely problematic for applicants whose applications were incorrectly approved, as they face the rescission of their permanent residency and the stability of their lawful status, or a challenge to their status in the future when applying for citizenship. 

Concerns for Applicants

Under 8 CFR 246.1, USCIS can rescind an applicant’s erroneously approved permanent residence by issuing a Notice of Intent to Rescind within 5 years of the date of approval if they obtain information indicating that the individual was not eligible for lawful permanent resident status at the time of approval. Additional, INA section 218 requires a naturalization applicant to show that they have been lawfully admitted to the United States for permanent residence. Therefore, USCIS could deny an application for naturalization where the application to adjust status to permanent resident status was erroneously approved, even if due to USCIS error, and initiate proceedings to revoke their lawful permanent resident status at that point.

Potential Solutions

Due to the immensely harmful consequences of a prematurely approved Form I-485, applicants and their attorneys should verify that a visa number is available on the date that an applicant’s Form I-485 is approved. An applicant who receives a Notice of Intent to Rescind (NOIR) their erroneously approved permanent resident status may respond by asking for their previous underlying immigration status to be reinstated, and for their Form I-485 application to be re-opened, along with their applications for employment authorization and/or advanced parole. Those who have not received a NOIR but believe their Form I-485 was approved incorrectly may contact USCIS via the Contact Center and request reopening of the case. 

Alternatively, the applicant may file a Motion to Reopen (Form I-290B) with a filing fee for each Form I-485 applicant. If USCIS is not responsive to this request or the motion to reopen is not granted, it is recommended they contact either the USCIS Ombudsman or a member of Congress for further assistance.

Conclusion

If you believe your application approval was made in error, have case-specific questions, or would like more information, please contact the trusted immigration attorneys at Chugh, LLP.