One of the happiest moments for an I-485 Adjustment of Status applicant is the day their employment-based I-485 is approved and their green card is ordered for production in mailing. However, sometimes the U.S. Citizenship and Immigration Service (USCIS) approve I-485 applications in error, most commonly when the priority date is not current, and this creates major issues for the applicant.
Visa Number Must Be Available for I-485 Approval
An I-485 applicant for adjustment of status must have a visa number “available” before their green card can be approved. USCIS relies on the Department of State (DOS) Visa Bulletin and, specifically, on the cutoff dates listed in the “Final Action” column (see our Visa Bulletin Explainer; also see the most recent Visa Bulletin published by DOS).
The relevant USCIS rule, in 8 CFR 245.2(a)(5)(ii), states that “[a]n application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State.”
So the question then is, When does the visa allocation by DOS happen? USCIS has confirmed that it subtracts a visa number only upon adjudication of the application to adjust status and not in advance. In other words, USCIS does not “reserve” visa numbers for a pending I-485.
A visa number is not subtracted from the annual limit based on any other preliminary step in the adjudication process (that is, not at the time of filing, not at the time of interview scheduling, not at the time of transferring to a USCIS Field Office, not with the issuance of a Request for Evidence, not with the approval of the underlying immigrant visa petition, not with the granting of a transfer of underlying basis request, etc.). There is also no reservation or pre-allocation of a visa number to an applicant at any of these procedural steps. If USCIS has approved an adjustment of status application for a principal applicant, but the applications of dependent family members remain pending, immigrant visa numbers have not yet been subtracted from the annual limit for the dependent family members.
See USCIS’s Employment-Based Adjustment of Status FAQs, Updated 03/22/2023.
This basically means that an I-485 can be approved only when the priority date is current and there is a visa number available at the time of I-485 approval.
How Do I Know If My I-485 Has Been Approved in Error?
The best way is to look at the Visa Bulletin which is in effect as of the date of I-485 approval and compare the underlying petition’s I-140 priority date and the cutoff date for the relevant preference category and country of chargeability under the “Final Action” section of the Visa Bulletin.
If the priority date is NOT earlier than the Final Action cutoff date for the preference category, then this is an indication that the I-485 application may have been approved in error.
Is it a Big Problem if My I-485 Has Been Approved Prematurely and in Error?
Yes, this can be a major problem for both the short term green card validity (risk of rescission of the green card) and also down the road during a possible US naturalization application to become a US citizen (risk of denial and rescission).
First, under 8 CFR 246.1, USCIS can commence proceedings to rescind the adjustment of status and permanent residence by issuing a Notice of Intent to Rescind within 5 years of the date of adjustment which would occur if the agency obtains information leading it to believe the individual was not eligible for lawful permanent resident status. While USCIS rarely double-checks their files after approval, it is possible that USCIS may still realize that an I-485 has been approved in error and seek to rescind the approval. A rescission of the green card will leave the applicant without valid status in the US.
Additionally, section 218 of Immigration and Nationality Act (INA) requires a naturalization applicant to demonstrate that they have been lawfully admitted to the US as permanent resident in accordance with the rules in effect at the time of the green card approval. As a result, USCIS could deny an application for naturalization where the application to adjust status to permanent resident status was erroneously approved, even if such approval was due to USCIS error.
As noted, a premature erroneous approval of I-485 can be a major risk that, if not addressed, will post danger for a number of years. It is very important to analyze the applicant’s circumstances including status, travel and work authorization needs, ability to extend, and more to craft the best course of action.
How to Fix a Premature I-485 Approval?
First, as noted, we recommend carefully analyzing and confirming that an I-485 has been approved in error. Then, we recommend carefully analyzing the applicant’s nonimmigrant options, including work authorization and travel needs and documents, availability of nonimmigrant status (H-1B, H-4, etc.) and whether any of the correction steps may cause additional unforeseen challenges.
1.Option 1. Generally, it is recommended that the applicant or their attorney contact USCIS Contact Center and request that the I-485 application be reopened. This is best done very early after I-485 approval. In our experience, contacting USCIS does not always result immediate reopening of I-485 and, if applicable, prior nonimmigrant status reinstatement and this option may still require filing a Motion to Reopen (see below) and repeatedly contacting and following-up with USCIS.
2.Option 2. It is also possible for the applicant to submit I-290B Motion to Reopen for each of the family members’ approved I-485 applications and seek to have the approved cases reopened and reinstates as pending. Compared to contacting USCIS, filing a Motion to Reopen is a more formal (application) process seeking to correct or reverse a wrong USCIS decision. USCIS also is required to review the request and take corrective steps.
In either scenario, it is important to also consider the applicant’s options with respect to reinstating any nonimmigrant status (such as H-1B, H-4, etc.) held prior to the erroneous I-485 approval. This should be part of the USCIS correspondence and a request should specifically be made. It may be possible to also seek extensions or changes of nonimmigrant status following the reopening of the I-485.
We urge all I-485 applicants to hold the post-approval celebrations for a minute and to ensure that their I-485 has been properly approved. See our alert on What Happens Post-I-485 Approval. This is especially true when the applicant gets a “surprise” approval without necessarily expecting it because their priority date is not current. We also urge applicants who may suspect that their I-485 has been approved in error to carefully evaluate their options as soon as possible.
Our office is happy and available to assist clients with analyzing any such situation and helping with further steps. Please do not hesitate to contact us or consider our consultation options. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.