CIS Issuing Approval Notices for Long Pending I-130 Petitions; Now What?
Published: August 31, 2009

In recent weeks, it appears Citizenship and Immigration Service Centers across the US have been making headway on their backlog of long pending visa petitions filed by US Citizens or Permanent Residents on behalf of their foreign-born family members both living in the US and abroad. Many of these US petitioners and their family are receiving official CIS “Notice(s) of Action” approving their I-130 petition(s), and of course the families are jubilant upon getting the news. But is jubilation warranted? Is a green card or immigrant visa close at hand?

What does the Notice of Action approving the I-130 mean?

It means the relationship that is the basis of the petition has been established, and that the CIS office reviewing the petition has finally gotten around to formally approving the filing. However, other than for spouses and young children of US citizens as well as parents of adult US citizens – where visas are immediately available – a green card or immigrant visa will not be in the foreign relative beneficiary’s immediate future.

That is because visa availability in the Family 1st thru 4th Preference Categories is backlogged in a big way, and due to the demand for visas in these categories significantly outnumbering the supply, it still could be a matter of 5 to 30 additional years – depending on the Preference category at issue – before the foreign national receives any type of US immigration benefit.

But the Notice Says I Might be Eligible to Apply for Adjustment of Status or for Immediate Immigrant Visa Processing!

For foreign nationals who are the subject of the approved visa petition and are living in the US, the boilerplate language on these approval notices are giving many intending immigrants the impression, reasonably or not, that they can immediately visit their local CIS office to file their applications to adjust status. For many visa petition beneficiaries living abroad, the language on the approval notice is likewise giving the impression, reasonably or not, that the case is being transferred to the US Department of State for immediate immigrant visa processing.

The problem is that there is a substantial divide between the impression and the reality, since nothing in terms of real and immediate immigration benefits are within reach. Again, this is due mainly to the long wait for visa availability, and that although the parties have established a priority date (i.e. a place in the visa line), the line they are waiting in may very well involve an additional 5 to 30 year wait – depending on the Family Preference (and country of nationality, since those from Mexico and the Philippines are subject to even longer waits than those from other countries).

So, if an I-130 petition of a US citizen on behalf of their sibling is approved after remaining pending for 5 years, the parties will still have to wait another 5 years for visa availability since the backlog for visas in the Family 4th preference is approximately 10 years. (and even longer for nationals of Mexico and the Philippines ).

Which overstays or undocumented foreign nationals living in the US will be eligible to apply for adjustment of status in the US?

As stated, a foreign national overstay who is married to a US citizen, is the under-21 year old child of a US citizen, or is the parent of an adult US citizen, will generally be able to adjust status in the US, notwithstanding major gaps in their status and no matter when their filings are initiated.

As to other categories of immigrants, only those who were the subject of a family or employment based visa petition or labor certification filing filed prior to January 14, 1998 (or in some cases April 30, 2001) and covered under Section 245(i) will be eligible to adjust their status in the U.S. Payment of a penalty of $1,000.00 will be required when submitting their adjustment of status application, which of course can only be submitted upon visa availability.

As far as responding to National Visa Center requests for payment of fees for overseas immigration visa processing, those beneficiaries who are in the US and have no intention of returning to their home country for visa processing should not comply with such requests since payment of these fees is an absolute waste of money (no matter how good or right it might feel to comply). See also my previous article on a related topic.

Unless new legislation is passed, those not covered under previous versions of Section 245(i) will not be eligible to adjust status. And since such overstays or undocumented individuals face dismal immigration consequences if they returned to their home countries for their immigrant visa interviews, staying in the US to wait for some new legislation pretty much becomes their only option if the wish to keep alive their hope to someday become “legal” in the US.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois