Immigration Law

Under U.S. immigration law, eligibility to apply for a family-based visa depends on the familial relationship between the U.S. citizen or lawful permanent resident (LPR) sponsor and the foreign relative. Immediate relatives of U.S. citizens, including spouses, unmarried children under the age of 21, and parents (if the citizen is at least 21 years old), are eligible to apply for a visa without numerical limitations § 1153. Allocation of immigrant visas, Tovar v. Sessions, 882 F.3d 895, Feimei Li v. Renaud, 654 F.3d 376.

For other family members, the Immigration and Nationality Act (INA) establishes a preference system with numerical caps. These categories include: (1) unmarried adult children of U.S. citizens (F1), (2) spouses and unmarried children of LPRs (F2A), (3) unmarried adult children of LPRs (F2B), (4) married children of U.S. citizens (F3), and (5) siblings of U.S. citizens, provided the citizen is at least 21 years old (F4) § 1153. Allocation of immigrant visas, Tovar v. Sessions, 882 F.3d 895, Gee v. INS, 875 F. Supp. 666.

Additionally, derivative beneficiaries, such as the spouse or child of a principal beneficiary, may also be eligible for the same visa status as the principal beneficiary if they accompany or follow to join the principal applicant § 1153. Allocation of immigrant visas, Feimei Li v. Renaud, 654 F.3d 376. Special provisions exist for abused spouses, children, and parents under the Violence Against Women Act (VAWA), allowing them to self-petition for a family-based visa without the cooperation of the abusive sponsor § 41.05 Abused Spouse, Child, or Parent.

The process begins with the U.S. citizen or LPR sponsor filing a Form I-130 petition with U.S. Citizenship and Immigration Services (USCIS) to establish the qualifying relationship. Once approved, the foreign relative may proceed with the visa application process, subject to availability under the applicable preference category Feimei Li v. Renaud, 654 F.3d 376, Scialabba v. De Osorio, 573 U.S. 41, De Osorio v. Mayorkas, 656 F.3d 954.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

Under U.S. immigration law, specific statutory bars to adjustment of status are outlined in various provisions of the Immigration and Nationality Act (INA) and related regulations. These bars include:
Unlawful Status and Unauthorized Employment: Under § 1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence, an alien who is in unlawful immigration status or has engaged in unauthorized employment on the date of filing the application for adjustment of status is generally ineligible. However, exceptions exist for immediate relatives of U.S. citizens and certain special immigrants § 1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence, Gomez v. Lynch, 831 F.3d 652, Sanchez v. Mayorkas, 593 U.S. 409.
Failure to Maintain Lawful Status: An alien who has failed to maintain continuous lawful status in the United States for an aggregate period exceeding 180 days is barred from adjustment of status unless they qualify under specific exceptions, such as those outlined in § 1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence, Sanchez v. Mayorkas, 593 U.S. 409.
Entry Without Inspection: Aliens who entered the United States without inspection or admission are generally barred from adjustment of status under § 1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence. However, INA § 245(i) provides a pathway for certain aliens who entered without inspection to adjust their status if they meet specific requirements, such as being the beneficiary of a qualifying petition filed on or before April 30, 2001 § 1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence, 2. INA 245(i) Statutory Sum.
Prior Removal or Illegal Reentry: Under § 1231. Detention and removal of aliens ordered removed, aliens who have been previously removed and subsequently reentered the United States illegally are barred from adjustment of status. This bar applies regardless of whether the reentry occurred before or after the reinstatement of the removal order Berrum-Garcia v. Comfort, 390 F.3d 1158, Fernandez-Vargas v. Ashcroft, 394 F.3d 881.
Fraudulent Marriage: Section 204(c) of the INA prohibits adjustment of status for aliens who have entered into a marriage for the purpose of evading immigration laws. This bar applies to any subsequent petitions filed on behalf of the alien § 204.2 Petitions for relatives, widows and widowers, and abused spouses and children..
Frivolous Asylum Applications: Under 8 U.S.C. § 1158(d)(6), an alien who knowingly files a frivolous asylum application is permanently ineligible for any immigration benefits, including adjustment of status § 1208.20 Determining if an asylum application is frivolous..
Employment Without Authorization: Aliens who were employed without authorization after January 1, 1977, are barred from adjustment of status unless they fall under specific exceptions, such as being an immediate relative of a U.S. citizen or a special immigrant § 245.1 Eligibility..
Inadmissibility: Adjustment of status applicants must be admissible to the United States. Grounds of inadmissibility under 8 U.S.C. § 1182, such as health-related issues, criminal convictions, or security concerns, can bar adjustment of status unless waived § 1182. Inadmissible aliens, Ayanian v. Garland, 64 F.4th 1074.

These statutory bars are subject to exceptions and waivers in certain circumstances, depending on the applicant's specific situation and eligibility under other provisions of the INA.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

Under § 1158. Asylum, an asylum application is deemed frivolous if the Attorney General determines that the applicant knowingly made a false application and the applicant received proper notice of the consequences of filing such an application. The statute imposes a severe penalty: permanent ineligibility for any benefits under the Immigration and Nationality Act (INA) as of the date of the final determination on the application § 1158. Asylum, Yuanliang Liu v. United States DOJ, 455 F.3d 106, Mei Juan Zheng v. Mukasey, 514 F.3d 176.

To determine whether an application is frivolous, the following criteria must be met: (1) the applicant knowingly included deliberately fabricated material elements in the application, and (2) the applicant was provided notice of the consequences of filing a frivolous application at the time of filing, as required under § 1158. Asylum, Mei Juan Zheng v. Mukasey, 514 F.3d 176, Almaghzar v. Gonzales, 457 F.3d 915. The notice requirement can be satisfied through written warnings on the asylum application form, such as the I-589 form, which applicants must sign, acknowledging the consequences of knowingly filing a frivolous application Cheema v. Holder, 693 F.3d 1045, Niang v. Holder, 762 F.3d 251, Ndibu v. Lynch, 823 F.3d 229.

Additionally, federal regulations under 8 C.F.R. § 1208.20 clarify that a frivolousness finding can only be made if the applicant is given an opportunity to explain any discrepancies or implausible aspects of their claim during the proceedings. The fabricated elements must also be material to the asylum claim at the time the application was made Mei Juan Zheng v. Mukasey, 514 F.3d 176, Almaghzar v. Gonzales, 457 F.3d 915, Ghazali v. Holder, 585 F.3d 289. Courts have upheld that even withdrawn or time-barred applications can be deemed frivolous if they meet these criteria, as the focus is on the act of knowingly submitting false material information Ghazali v. Holder, 585 F.3d 289, Kulakchyan v. Holder, 730 F.3d 993, Luciana v. AG , 502 F.3d 273.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

The waiting period for an EB-5 visa varies significantly depending on the applicant's country of origin and the type of EB-5 visa sought. For applicants from countries with high demand, such as China, the waiting period can extend to several years. For instance, as of April 2024, Chinese applicants for non-reserved EB-5 visas faced a backlog of approximately nine years, with visas becoming available for those who filed their petitions in December 2015. In contrast, there is no backlog for reserved EB-5 visas, such as those for infrastructure projects, allowing qualifying applicants to receive visas as soon as their applications are approved Del. Valley Reg'l Ctr., LLC v. United States Dep't of Homeland Sec., 106 F.4th 1195.

The EB-5 visa process involves multiple steps, including the filing of a Form I-526 petition with USCIS, which is subject to processing delays. Once the petition is approved, applicants must wait for a visa number to become available based on their priority date and country of origin. The availability of visa numbers is governed by annual caps and per-country limits, which can further extend waiting times for applicants from oversubscribed countries Del. Valley Reg'l Ctr., LLC v. United States Dep't of Homeland Sec., 106 F.4th 1195, Aiteliyev v. Mayorkas, 717 F. Supp. 3d 67, Lin Liu v. Smith, 515 F. Supp. 3d 193.

Additionally, the EB-5 program has experienced interruptions, such as a nine-month pause in statutory authorization from June 2021 to March 2022, which contributed to delays in processing petitions. Resource limitations and competing demands on USCIS also impact the processing timeline Aiteliyev v. Mayorkas, 717 F. Supp. 3d 67, Da Costa v. Immigr. Inv. Program Office, 80 F.4th 330. For applicants from countries with lower demand, the waiting period may be significantly shorter, especially for reserved visa categories Del. Valley Reg'l Ctr., LLC v. United States Dep't of Homeland Sec., 106 F.4th 1195.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

The backlog for EB-5 visas in high-demand countries like China is primarily caused by several factors, including statutory limitations, high demand, and administrative processing challenges. The Immigration and Nationality Act (INA) imposes an annual limit of 140,000 employment-based visas across all categories, with only 7.1% allocated to the EB-5 category. Additionally, there is a per-country cap of 7% for employment-based visas, which disproportionately affects countries with high demand, such as China, where the number of applicants far exceeds the available visas Nikunj Patel v. Jaddou, 695 F. Supp. 3d 158, § 1152. Numerical limitations on individual foreign states.

The backlog is further exacerbated by the "first-in, first-out" processing system, which prioritizes petitions based on the order of filing. However, this system can lead to delays for applicants from oversubscribed countries, as their petitions may be processed but remain in a queue until visas become available under the per-country cap Da Costa v. Immigr. Inv. Program Office, 80 F.4th 330, Palakuru v. Renaud, 521 F. Supp. 3d 46. For instance, as of April 2024, Chinese applicants with priority dates from December 2015 were only just becoming eligible for non-reserved EB-5 visas, reflecting a nine-year backlog Del. Valley Reg'l Ctr., LLC v. United States Dep't of Homeland Sec., 106 F.4th 1195.

Another contributing factor is the inclusion of family members in the annual visa cap, which significantly reduces the number of visas available to principal investors. This policy has been challenged in court but remains a key reason for the extended wait times for applicants from high-demand countries E.B. v. United States Dep't of State, 422 F. Supp. 3d 81. Additionally, administrative delays, such as those caused by pauses in statutory authorization and resource limitations at USCIS, have further prolonged processing times Da Costa v. Immigr. Inv. Program Office, 80 F.4th 330.

The introduction of reserved visas under the EB-5 Reform and Integrity Act of 2022 has provided some relief for certain categories of investors, such as those investing in infrastructure projects. These reserved visas are not subject to the same backlog, allowing qualifying investors to bypass the lengthy wait times faced by others in the general EB-5 visa pool. However, this does not address the broader backlog issue for non-reserved visas, particularly for applicants from countries like China Del. Valley Reg'l Ctr., LLC v. United States Dep't of Homeland Sec., 106 F.4th 1195.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

EB-5 visa applicants affected by prolonged backlogs have several potential legal remedies, though these remedies are subject to limitations and judicial discretion. Applicants may seek relief through administrative or judicial channels, but courts have generally been cautious in granting expedited processing due to concerns about fairness and resource allocation.

First, under § 1573. Immigration services and infrastructure improvement account, the Attorney General is authorized to implement measures to reduce backlogs in immigration benefit applications, including the EB-5 program. This statute provides a framework for addressing systemic delays, such as increasing personnel or streamlining processes, but it does not create an individual right to expedited processing § 1573. Immigration services and infrastructure improvement account, § 271. Establishment of Bureau of Citizenship and Immigration Services.

Second, applicants may file lawsuits under the Administrative Procedure Act (APA) to challenge unreasonable delays in processing. However, courts have consistently held that delays alone do not necessarily violate the "rule of reason" standard. For example, in Da Costa v. Immigration Investment Program Office, the court found that while the backlog is troubling, the delay must be evaluated in the context of agency resource constraints and competing priorities. The court declined to compel expedited adjudication, emphasizing that such relief could unfairly disadvantage other applicants Da Costa v. Immigr. Inv. Program Office, 80 F.4th 330. Similarly, in Hulli v. Mayorkas, 549 F. Supp. 3d 95, delays of 15 to 28 months were deemed reasonable given operational constraints, including those caused by the COVID-19 pandemic Hulli v. Mayorkas, 549 F. Supp. 3d 95.

Third, the EB-5 Reform and Integrity Act of 2022 introduced provisions to prioritize certain types of EB-5 petitions, such as those involving rural investments. In Aiteliyev v. Mayorkas, 717 F. Supp. 3d 67, the court acknowledged that this prioritization could apply retroactively, depending on the circumstances, but dismissed claims for expedited processing based on general delays Aiteliyev v. Mayorkas, 717 F. Supp. 3d 67.

Finally, applicants may explore alternative visa categories or reserved EB-5 visas created under the EB-5 Reform and Integrity Act. Reserved visas for infrastructure projects, for instance, are not subject to the same backlogs as regular EB-5 visas, potentially offering a faster path for eligible investors Del. Valley Reg'l Ctr., LLC v. United States Dep't of Homeland Sec., 106 F.4th 1195.

In summary, while legal remedies exist for addressing prolonged backlogs, they are often constrained by statutory and judicial considerations. Applicants may pursue administrative reforms, APA litigation, or alternative visa options, but courts are generally reluctant to intervene in agency resource allocation or prioritize individual cases over others in the queue.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

Yes, you can work while your adjustment of status application is pending, but you must obtain employment authorization from USCIS. To do so, you need to file Form I-765, Application for Employment Authorization, either concurrently with or after filing your adjustment of status application (Form I-485). Employment authorization is not automatic and must be approved by USCIS before you can legally work in the United States § 245.15 Adjustment of Status of Certain Haitian Nationals under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA)., § 245a.13 During pendency of application., § 1245.11 Adjustment of aliens in S nonimmigrant classification..

For certain categories of applicants, such as those whose nonimmigrant status inherently allows employment, work authorization may be incident to their status, and they may not need to apply for an Employment Authorization Document (EAD). However, most adjustment applicants must apply for and receive an EAD before engaging in employment. If your EAD expires while your adjustment application is pending, you must refrain from working until a new EAD is issued 2. Authorized Employment, AFM 23.5 Adjustment of Status under Section 245 of the INA..

Additionally, employment authorization may be granted at USCIS's discretion and can be revoked under certain circumstances, such as the denial of the adjustment application or other violations of immigration regulations Guevara v. Holder, 649 F.3d 1086. It is important to ensure compliance with all applicable rules to maintain eligibility for adjustment of status and work authorization § 245.15 Adjustment of Status of Certain Haitian Nationals under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA)., Guevara v. Holder, 649 F.3d 1086.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

USCIS does not have a specific statutory or regulatory timeframe for processing Form I-765 applications for employment authorization during the adjustment of status process. Historically, former regulations required USCIS to adjudicate such applications within 90 days, but this requirement was eliminated effective January 17, 2017, through rulemaking. As a result, there is no longer a mandated deadline for processing these applications, and interim employment authorization documents are no longer issued if the processing exceeds a certain timeframe Gonzalez v. Cuccinelli, 985 F.3d 357, Gonzalez v. United States Dep't of Homeland Sec., 500 F. Supp. 3d 1115.

While there is no binding timeframe, Congress has expressed a general policy expectation that immigration benefit applications, including employment authorization, should be processed within 180 days of filing. This is outlined in § 1571. Purposes, which reflects Congress's intent to ensure timely adjudication of immigration benefits § 1571. Purposes, Kashkool v. Chertoff, 553 F. Supp. 2d 1131. However, this is a non-binding "sense of Congress" provision and does not impose a legal obligation on USCIS to adhere to this timeframe.

In practice, processing times for Form I-765 can vary significantly depending on factors such as the service center handling the application and the applicant's specific circumstances. For example, in one case, USCIS approved an I-765 application within approximately three months (July 2, 2007, to September 26, 2007) Xiao Lu Ma v. Sessions, 907 F.3d 1191. However, this timeframe is not guaranteed and may differ in other cases.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation."

Yes, there are expedited processing options available for Form I-765 applications for employment authorization during adjustment of status, but they are subject to specific conditions and limitations.

Historically, regulations required USCIS to process certain employment authorization applications within 30 days. However, this requirement was eliminated by the Department of Homeland Security (DHS) through the "Timeline Repeal Rule," which removed the 30-day processing deadline for asylum-related Form I-765 applications. This rule, effective as of August 21, 2020, allows USCIS to take additional time to process such applications, citing resource constraints and the need to prevent misuse of the system Casa de Md., Inc. v. Wolf, 486 F. Supp. 3d 928. However, this rule was later vacated and set aside by the court in Asylumworks v. Mayorkas, 590 F. Supp. 3d 11, effectively reinstating the prior processing requirements for certain categories of applicants Asylumworks v. Mayorkas, 590 F. Supp. 3d 11.

Additionally, under specific agreements, such as the one in American Baptist Churches v. Thornburgh, 760 F. Supp. 796, class members who filed Form I-765 and did not receive adjudication within 60 days were entitled to immediate employment authorization. However, this provision applied only to specific class members under that agreement American Baptist Churches v. Thornburgh, 760 F. Supp. 796.

For asylum applicants, regulations under 8 C.F.R. § 208.7(a)(1) previously required USCIS to adjudicate initial EAD applications within 30 days of filing, provided the applicant had waited 150 days after submitting their asylum application. This timeline was also impacted by the aforementioned rule changes United States v. Villarreal, 595 F. Supp. 2d 1039, Rosario v. United States Citizenship & Immigration Servs., 365 F. Supp. 3d 1156.

In summary, while expedited processing options have existed historically, recent regulatory changes and litigation outcomes have significantly altered the timelines and conditions under which Form I-765 applications are processed. Applicants should consult the latest USCIS policies or legal counsel for current processing timelines and options.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."