I-485s will be approved based on RD and not PD- Murthy Law

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Analysis of EB2 Forward Movement in Aug 2008
Posted Jul 25, 2008
©MurthyDotCom
As reported in last week's MurthyBulletin, the U.S. Department of State (DOS) Visa Bulletin holds some very good news in the employment-based, second preference (EB2) category for nationals of certain countries. The cutoff dates for India and China were advanced in excess of two years - to June 1, 2006. More on this development can be found in our July 18, 2008 article August 2008 Visa Bulletin: EB2 India/China Jumps Forward. This has generated some questions and misunderstandings among our clients and readers of MurthyDotCom and the MurthyBulletin. Here, some of those concerns are addressed and clarifications provided on common misperceptions.
©MurthyDotCom
Only Qualifying I-485s can be Approved in August 2008
©MurthyDotCom
Many people assume that their pending I-485s will be approved in August 2008, simply because the cutoff dates have moved forward dramatically in the Visa Bulletin for August 2008. The Visa Bulletin reflects that there is availability of visa numbers for cases in EB2 that have priority dates of earlier than June 1, 2006. However, the Visa Bulletin is a DOS publication that relates to visa number availability. It is not a United States Citizenship and Immigration Services (USCIS) document to inform the public of the progress that has been made in case processing. It does not mean that the USCIS is working on all the cases with qualifying priority dates. The USCIS processes cases based upon filing date order and can only approve the I-485 when the priority date is current. This means that both conditions must be met for the USCIS to approve the Adjustment of Status (I-485) application. Approximations of the USCIS processing dates are accessible from the USCIS service centers. Find them through the times page on MurthyDotCom.
©MurthyDotCom
In simple terms, the USCIS starts to process I-485 cases based upon when they were filed. If a visa number is available at the time of review, and everything else is acceptable, the case can be approved. If the case is acceptable, but there is no visa number, it must be shelved until the visa number is available, meaning that the priority date becomes current again. The USCIS has many cases that have been reviewed and shelved because of a shortage of visa number availability. It has a system for identifying cases regularly and finalizing them when visa numbers become available.©MurthyDotCom
Not All Pre-June 1, 2006 EB2 Cases Will be Approved
©MurthyDotCom
The movement of the cutoff dates to June 1, 2006 does not actually mean that there are enough available visa numbers for the USCIS to approve all EB2 cases with priority dates before June 1, 2006. The DOS is trying to ensure that the visa numbers are not unused and, therefore, wasted at the end of this fiscal year, which is September 30, 2008. So, it sets a generous cutoff date to expand the number of potentially eligible I-485s that the USCIS may review and approve before September 30, 2008. DOS estimates are based on information received from the USCIS regarding pending I-485 cases, as well as information from the U.S. consulates regarding immigrant visa demand levels.
©MurthyDotCom
Thus, not all of the I-485 cases with qualifying dates will be approved in August 2008. An approval is determined both by the limited immigrant visa number and by the USCIS's ability to process the case. Though it is anticipated that many people will receive approvals in August 2008, no one should assume that his/her case is guaranteed an approval. One way to increase the chances of an August approval is the filing of a Writ of Mandamus lawsuit, should the facts of one's case support it and if the case has been unreasonably delayed substantially beyond the current processing times.
©MurthyDotCom
 
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So what happens for the EB2-India/China case with priority date May 31, 2006 and I-485 application date of July 2, 2007? Will this case be approved without estimating the number of EB2-India/China cases with older PDs? Or did USCIS already estimated the number of EB2-India/China cases and moved the PD to June 1, 2006 accordingly?
 
PD dictates only if you can\not file 485. Once 485 is filed, PD dictates whether or not your 485 will be approved; but the order is by RD.
So, it makes sense.
One would hope the communication between the two agencies is better now (after the july'07 VB fiasco). DOS may tell CIS that these many numbers are left in EB2 (overall);CIS may have gone back and stated that EB2 row demand is low and hence, DOS jumped the dates for EB2IN\CHI. CIS may have further estimated the number of approvable cases by june'06 in EB2IN\CHI categories and hence decided to move the date only to this date and not made current.
This is my speculation.
manwithnoname said:
So what happens for the EB2-India/China case with priority date May 31, 2006 and I-485 application date of July 2, 2007? Will this case be approved without estimating the number of EB2-India/China cases with older PDs? Or did USCIS already estimated the number of EB2-India/China cases and moved the PD to June 1, 2006 accordingly?
Click to expand...
 
So based on the above, a EB2 India/China filer with priority date of April 2, 2004 may miss a chance if I-485 was applied on August 16, 2007 (cut off date). In this case the application will be processed late ... thereby even a 'very early' PD may not be processed before the visa numbers runs out. All depends how accurate is the prediction.
 
It is curious how the predictions work. DOS will release the sept'08 VB in another 10 days or so(per murthy's article).
So, one or two days in the next week, CIS has to send their estimate of EB2 numbers usage to DOS and hence dos has to make predictions for the EB2 cutoff dates for september'08.
All this will happen while CIS is still receiving and approving 485 of the approvable cases. My guess is that they have already an estimate of the number of approvable cases that their staff can process within working days of August'08. This estimate will be likely sent to DOS for release of the next VB come next week.
It is strange though because someone with very early PD may not be processed if they have just gotten their approved certification. So the dates will continue to move in a random fashion come FY09.
Would be interesting to understand how many cases have been filed on august 1st; since most people with pds upto july'07 have already filed 485s. CIS can not process more than a given number of cases in a month; so, it just depends on how many numbers are left in Eb2 category. If these two are available, predictions regarding next month eb2 pd can be made.
 
Unclear about processing dates

When you look at Trackitt there is an approval from NSC for an RD of Jan 2008, country of filing Zimbabwe, EB2 category. How did they process, I 485 when the RD is Jan 2008 adn the processing date for NSC is August 2008. Any thoughts?
Also, manwithnoname's question is very good. Is there no system at all to this mess?
 
murthy's article applies to a category. So, within a category approvals will be based on RD.
EB2ROW has seen such low demand that it is going to be approved very fast.
madjad said:
When you look at Trackitt there is an approval from NSC for an RD of Jan 2008, country of filing Zimbabwe, EB2 category. How did they process, I 485 when the RD is Jan 2008 adn the processing date for NSC is August 2008. Any thoughts?
Also, manwithnoname's question is very good. Is there no system at all to this mess?
Click to expand...
 
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