How can I file an adjustment of status application when my priority date is not current?
My I-526 was approved but my priority date is not yet current. I am currently an F1 student visa holder, and just finished my studies this May. As a result, my grace period will expire in less two months and I need to get out of the country by then. Because of COVID-19, the majority of flights back to my home country is canceled. I am worried that I will soon have to become illegally overstaying. Are there any possibilities to file my status adjustment application now under such special circumstances?
No, you cannot file for adjustment of status as there is no such exception for EB-5 petitioners. As a student who just finished his studies there may be at least one option for you, advisably consult your international student advisor or designated school official (DSO) for the possibility of obtaining an Optional Practical Training (OPT) status which can extend your student visa stay in the US. If you plan to pursue this option, you should act soon because, the rule is that you must apply up to 90 days before you complete your degree, but not later than 60 days after you complete your degree.
No, you cannot file for adjustment of status until your priority date is current. But you can file a change of status to B2 due to a lack of flights. And if your priority date becomes current while B2 is pending, file I-485 with proof of valid I-539 pending.
You may consider applying for another academic program in the U.S. and continue the F-1 status until your priority date becomes current. Also, you can apply for the H-1B visa next year if your employer is subject to the cap to maintain valid nonimmigrant status.
You will not be able to file your Form I-485 unless the priority date is current, or the date for filing is current and USCIS allows that date to be used for filing for adjustment of status purposes. Your options are either to enroll in a new educational program and extend your F-1 status, (2) file a change of status to another nonimmigrant visa category, like B-2, or to leave the country and await immigrant visa processing at the U.S. embassy or consulate in your home country. As long as you do not accrue more than 180 days of unlawful presence in the United States, you will not be subject to the three-year reentry bar.
You can only file your adjustment if your priority date is current under chart A-Final Action Date of the Visa Bulletin, unless they open chart B, date for filing. In June, chart B is closed. You need to try and extend your status.
You asked how you can file an adjustment of status application when your priority date is not current. Basically the response is that you cannot as the I-485 Application to Register as a Permanent Resident Alien would be rejected by USCIS. You mentioned you are currently an F1 student and that you just finished studies in May. Depending on when you finished, you will need to either depart the country before your 60 grace period ends or file for a change of status with an extension. You will need to get counsel on what visa classifications you may qualify for such as B-1/B-2, H-1B for a cap-exempt employer, L-1, E-2, H-3, J-1, etc. It is not worth it to overstay your status in the U.S. and become illegally overstaying, as you put it. You should be able to get a flight home if you decide not to change your status and then you can apply for Consular processing once your application becomes current. At this time there are no COVID-19 exceptions that would allow you to file your adjustment application now under such special circumstances. Typically, an extension or change of status must be filed before a foreign national''s current period of admission expires. USCIS has the discretion to accept late filings on a case-by-case basis with a showing of extraordinary circumstances. Limited discretionary options are available to foreign nationals unable to timely depart the United States or seek an extension or change of status due to the COVID emergency.
