Bernard P WolfsdorfImmigration Attorney
Whether or not you can file an AOS depends on at least two things besides admissibility issues as to whether you are eligible to adjust. First, the Department of State Visa Bulletin, and secondly, USCIS directive that is published a few days after the visa bulletin is published. The March visa bulletin is current for all countries for direct, and while the bulletin shows all countries as being unavailable, that changes automatically by the passage of the new law on March 15. See this note in the March Visa Bulletin: "If there is legislative action extending this category for March, the final action dates would immediately become "Current" for March for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015 final action date." (emphasis added). The USCIS then states that for March one must use Dates for Filing, which means persons can file adjustments for both direct and RC cases. However, the question is whether this is subject to the general 60-day hold in regards to the effective date of many of the provisions in the bill. The April visa bulletin indicates again that Dates for Filing must be used for adjustments and it states: "The Consolidated Appropriations Act, 2022, which reauthorizes and reforms the EB-5 Immigrant Investor Regional Center Program, was signed by the President of the United States on March 15, 2022. Certain Regional Center Program aspects of this legislation go into effect 60 days after the date of the enactment of this Act. More information will be published in coming editions of the Visa Bulletin." However, the April visa bulletin appears to allow AOS filing for persons with approved direct or RC petitions for all persons eligible to file except persons chargeable to China with priority dates after December 15, 2015. The bigger question is whether it allows one step I-526/I-485 direct filings because the 60-day hold appears to only apply to the RC program since the direct program has been and should remain open. I am doing a webinar with Charlie Oppenheim on Tuesday where we hope to get some clarification but it seems that maybe the government is trying to understand the big picture. One important point is that chart B Date for Filings were designed to make sure that all the visas are used and not wasted. This year we have almost 20,000 visas because of unused visas from prior years, so hopefully USCIS will do the right thing that was envisaged by the regulations that created the split visa bulletin and make sure as many visas as possible are used by accepting AOS filings so they have enough to avoid massive visa wastage. The final action date is for issuance of visas, and date for filing is to file adjustment cases and for NVC and consulates to get ready for consular interviews so it makes sense that one can file one-step I-526/I-485 AOS for direct now, and at least I-485 for pending and approved RC cases because one does not need an approved visa petition to file an AOS now. Based on current instructions in place, this should be possible. The USCIS has published the following statement on their website. "On March 15, President Biden signed a law that includes authority for an EB-5 Immigrant Investor Regional Center Program and various implementation effective dates for the program. The program will be in effect through Sept. 30, 2027. We are reviewing the new legislation and will provide additional guidance." As of now, the instruction on the website in regards to the Visa Bulletin and instructions on filing AOS appears to indicate that one can file EB-5 direct AOS, and it appears maybe even EB-5 RC AOS since both the VB and USCIS indicate that all except Chinese with filing dates prior to December 15, 2015 are eligible to file AOS. Again, this could change.