The 180 Days Rule of FBI Name Check

On February 4, 2008, USCIS issued a memo regarding new name check practices and also information related to the I-485 adjudication issue.  The memo should be seen as a positive development as it would mean that the USCIS will now approve I-485 Adjustment of Status application even if the related name check process has not been completed, provided that the name check has been pending more than 180 days. The approval of the related I-485 case under theses circumstances is possible provided that all other requirements for adjustment of status application have been met.  However, the USCIS reserves the right to revoke an approved I-485 (Green Card) application if the associated name check process concludes with the result that the applicant is ineligible for a Green Card.  This new rule is imperative to those applicants’ whose name check has been stuck in FBI for more than 180 days.

In the near future, the new name-check policy is only immediately beneficial to those applicants whose immigrant visa numbers were available. Moreover, it benefits those who have taken the immigrant visa numbers. However, in the long run, when visa number cut off dates move forward, more and more applicants will be able to receive benefits from this new policy.

USCIS may take a few months to implement this new policy.  For those applicants whose visa number is available and I-485 has been pending beyond USCIS’s published processing time, you need to be patient for a couple of months allowing USCIS to act under this new policy.

However, we cannot expect this new rule to expedite approval of all I-485s in USCIS. One of the foremost requirements for the approval of an I-485 application is the availability of an immigrant visa number to the applicant.  To determine an applicant’s eligibility for an available visa number, the “priority date” established by filing of the applicant’s I-140 (or PERM case, if applicable) must be prior to the specified “cut-off date” published in the monthly Department of State visa bulletin. This new rule is a big improvement regarding USCIS’s name check. I-485 applicants will no longer suffer the endless waiting of FBI name check. 

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 twelve 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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(02/13/2008)

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