A new trend has emerged where USCIS is approving employment-based green cards even when the applicant’s priority date is not current. Normally, to receive a green card, there must be a visa number available, corresponding to the applicant’s priority date. According to U.S. Citizenship and Immigration Services (USCIS), visa numbers are generally assigned at the time of case adjudication. If your priority date is not current during adjudication, this could indicate an issue.

If your green card is issued without an available visa number number this could possibly mean that the green card was issued in error. Our firm currently has two cases where the priority dates were not current at the time of the I-485 adjudication. While the priority dates were current at some point during the pendency of the case, the situation suggests two possibilities:

USCIS inadvertently issued the green card without an available visa number OR
USCIS assigned a visa number when the priority date was current. However, this would mean that USCIS is assigning visa numbers, not when the case is adjudicated, but at some other point in time, contrary to their stated policy.

Some people may be inclined to do nothing once they have received their green card. However, if the green card was issued in error this could become an issue in the future. If USCIS discovers their error they could revoke the green card. Therefore, it is better to address the issue now, rather than face potential issues further down the line.

Some recommendations can include the following:

Call USCIS and ask to speak to a Tier II officer. This was our first course of action in the two cases we’re handling. When we spoke to the Tier I officer, he claimed that it was rare for USCIS to make a mistake, despite a known track record of errors. The Tier I officer did not know when the visa was assigned and told us that we would have to wait at least 30 days for a call back from a Tier II officer. At the time of writing this article, we are still waiting for this call. Unfortunately, Tier II officers often call at inconvenient times, and if you miss the call twice, you’ll have to restart the process.
Reach out to the USCIS Ombudsman. If USCIS can’t help you can contact the Ombudsman about your situation. However, don’t expect a quick response from them. For those of you not familiar with the Ombudsman, they are an independent entity responsible for ensuring that USCIS is doing its job properly.
File a Motion to re-open. This is a last resort and may require the assistance of an Attorney. This step is only recommended if the first two options don’t work.

Conclusion

We suggest trying options 1 and 2 first. If USCIS issued your green card in error, they will most likely re-open your case and return your case back to pending status. While not ideal this can help avoid future problems with your immigration status. Our hope is that USCIS does not follow its own policy and is assigning visa numbers earlier in the process.

If you need assistance with your case, please contact PLG Partner, Chris Prescott at cprescott@patellegal.com.