The story of “Tommy and Tomina”…
One of the questions that every immigration lawyer gets asked is “How long is it going to take for my family member to get his green card?” And, in typical lawyer fashion, my response is “Well, it depends.” This
answer sometimes gets met with some disbelief. “Well, what kind of attorney are you if you can’t answer that question?!” I assure you that trying to explain the intricacies of the Visa Bulletin is not an easy feat. My good friend J Craig Fong, who has over 30 years of experience, has sought to explain the Visa Bulletin on his blog and even he thinks that it is full of mysteries.
Perhaps to help explain how the bulletin works, it would be helpful to have a real world example.
Tommy Trojan and his wife Tomina came to me last year. (Although my loyalty to the Blue and Gold runs deep, I really do have some Trojan clients.) Tommy was a lawful permanent resident and his girlfriend had entered on a tourist visa. Several months after she arrived, the Visa Bulletin indicated that the “F2A category” (spouses and minor children of permanent residents) was current. (This was back in August 2013.) They wanted to know if they got married, would Tomina be able to get her green card in the United States without having to go back to her home country? Because the category was current, because she was not out of status, and because she was eligible in all other respects, the answer was YES. (This is, by the way, why folks should actually meet with lawyers and not rely solely upon stuff they read on the internet. Depending on the circumstances, the answer could have been NO.)
We filed the paperwork on September 13, 2013 — while the F2A category was still current. The date that USCIS accepts the petition is known as the “priority date.” I tell clients to think of the priority date as their place in line. That line may get longer or shorter, but the priority date gives you an idea of how far along you are in the line. When the State Department indicates that it is processing cases with priority dates BEFORE the cut-off date listed on the Visa Bulletin, it means that the case can move forward for further processing. If your date is after the cut-off, it means that . . . well, you’re still in the waiting game.
Starting with the October 2013 visa bulletin, the F2A category went from “current” to “Sept. 8, 2013.” When the priority date moves backwards, it is known as a “retrogression.”
Based upon her application’s timely submission and despite the retrogression, USCIS granted Tomina a work permit and an advance parole document. Tomina is allowed to remain in the United States while the application for a green card is pending. Tomina is authorized to work. And, if necessary, Tomina is allowed to leave the United States for a short period of time and come back to pursue her application for a green card. (Again, consult with lawyers first. Do not subscribe to the “well, it worked for Tomina so it will work for me too” theory.)
When we went to the interview with USCIS, the visa bulletin had not moved from September 8, 2013. So, although the officer reviewed the documents and determined that Tommy and Tomina were in a real marriage (and not a sham, as I’ve warned against in my blog posts regarding immigration marriage fraud and hollywood immigration myths dispelled) the officer could not conclude the case because there were no visas available. Tommy and Tomina needed to wait until the visa bulletin processing dates caught up to September 13, 2013.
Several more months have gone by, and the visa bulletin has not moved from September 8, 2013. Until recently. According to the June 2014 Visa Bulletin, the cut-off date has moved . . . backwards to May 2012. More retrogression, unfortunately.
What does this mean for Tommy and Tomina? Well, Tomina may still remain in the United States and she may still work. But unfortunately, the wait until her green card arrives in the mail just got longer. How much longer exactly? Like I said before, “well, it depends.” Once sooooooooooooooo close, and now, so far.
What about marriage to a U.S. citizen? Immediate relatives, such as spouses and parents, are NOT subject to the mysteries and vagaries of the Visa Bulletin. In other words, they don’t have to fiddle with the priority dates. But they still need to be eligible and prove that it’s a bona fide marriage.
If you get caught between the moon and retrogression, remember the best that you can do is fall in love . . . and call me.