Normally, one has to be a U.S. citizen to be eligible to file a simultaneous I-130 petition and I-485 application for adjustment of status. Petitions by U.S. citizens on behalf of spouses, parents and minor children are considered as immediate relatives and visas are immediately available. In the last couple of months, the Visa Bulletin under the F2A visa category which covers petitions by green card holders for their minor children and spouses is reflecting a “current” visa availability. Filipinos who are green card holder petitioner’s in certain circumstances may also file simultaneous I-130 petition and I-485 adjustment of status under the F2A visa category.
Claire was petitioned by her mother under the F1B visa category. Her mother is a U.S. citizen who waited for more than 10 years before Claire was able to immigrate to the U.S. under the F1B visa petition. Claire has a minor child, Jason, but was not married to Nico, the father of her child.
When Claire immigrated in 2018 to the United States, she was able to take her minor child Jason with her. But Nico was left behind in Manila. Recently, Nico arrived in the United States on a student visa (F1), he is taking up Masteral Degree related to his career. Claire and Nico recently got married and Claire filed a petition for Nico under the F2A visa category (spouse of a green card holder) on December 1, 2019.
Nico regularly follows and reads the Visa Bulletin issued by the Department of State (DOS) to determine when his visa may become available. He noticed that for the months of F2A, the Final Chart on the Visa Bulletin shows that the F2A has the letter “C” on it. But the Filing Chart shows a 2009 priority date. What does the “C” status on the F2A category mean for Nico? Can Claire now file for his petition and simultaneously adjust his status?
Understanding the Two Charts on the Visa Bulletin
The monthly Department of State Visa Bulletin has two different charts. The DOS will post two charts per visa preference category. The charts are: (1) Application Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply).
According to the recently released November 26, 2019 policy guidance, when USCIS determines there are immigrant visas available for the filing of additional adjustment of status applications, generally, the Dates for Filing Applications chart will be used to determine when to file an adjustment of status application with USCIS. Otherwise, if the priority is current as indicated on the Application Final Action Dates chart, then the final action date chart must be used to determine when to file an adjustment of status application with USCIS.
This means that despite a cut-off date on Filing Chart (second chart), if the Final Action chart (first chart) shows a “C” or a current priority date for a visa category, the application for adjustment of status may be filed immediately for that specific month.
Going back to the case of Nico, who is the beneficiary of an F2A petition, since the Final Action chart indicates a C (or a current priority date), he may now file for an adjustment of status. This is because the C indicates that a visa is available for the month of December 2019. However, unlike immediate relative petitions of U.S. citizens, unless there is 245(i) eligibility, beneficiaries of F2A petitions must be in lawful status to be able to file for adjustment of status.
(Atty. Lourdes Santos Tancinco, Esq. is an immigrant advocate and a principal partner at the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com , facebook.com/tancincolaw, or through this website tancinco.weareph.com/old)
