by Adam Cohen
USCIS and the Department of State (DOS) recently released a bit of news that will impact thousands of individuals.
USCIS, in coordination with DOS, has revised procedures for adjustment of status to permanent residency. The changes center on the Visa Bulletin, published monthly by DOS to indicate current immigrant visa availability information. The bulletin now has a new format, which in many cases, will allow for earlier filing of the adjustment of status application. This, in turn, will allow for earlier receipt of the many benefits that come along with the filing of an adjustment application, such as work and travel authorization and adjustment portability.
Background about the Visa Bulletin
For DOS’s purposes, the Visa Bulletin has traditionally indicated when immigrant visas are available for issuance to applicants based on their individual priority date. However, USCIS has also used the bulletin and the applicant’s priority date to establish when the adjustment of status application can be filed. The priority date depends on when the applicant filed the document, which started the green card process. In family-based green card cases, the priority date is the date on which the applicant’s relative files the Form I-130 petition on the applicant’s behalf. In employment-based green card cases, the priority date is the date on which the employer (or at times the applicant) files the Form I-140 (OR the labor certification, if applicable) on the applicant’s behalf.
The length of time an applicant for a green card must wait largely depends on the applicant’s priority date, preference category, and the country to which the applicant’s visa will be charged. The applicants can view the Visa Bulletin to locate their country of birth or an all other countries column (labeled as “All Chargeability Areas), as well as their family-sponsored or employment-based preference category row. When they search the point at which the country and preference category merge, they find typically either a “C” or a specific date. The “C” means that the adjustment of status can be filed now for all qualified applicants. If a date is present, their priority date must be earlier than this date. For example, if the cut-off date listed on the Visa Bulletin is July 1, 2010, their priority date must be June 30, 2010 or earlier.
Changes to the Visa Bulletin
Four new charts have been added to the October Visa Bulletin. For both the family-sponsored and employment-based categories, the following charts appear:
- Application Final Action Dates (dates when visas may finally be issued); and
- Dates for Filing Applications (earliest dates when applicants may be able to apply).
The Application Final Action Dates is the name for the chart described above, which has traditionally indicated when visas may be issued and when adjustment of status may be filed. However, USCIS is now (at least for October) using the Dates for Filing Applications section to govern when adjustment of status may be filed, and these dates are generally earlier (in some cases, much earlier) then the final action dates. Every month, USCIS will make the determination as to whether the eligibility dates to file adjustment of status are tied to the Dates for Filing Applications or the Application Final Action Dates. As a result, if an applicant is able to file in a particular month, he or she would be wise to do so that month, because one cannot say what the next month will bring.
The Visa Bulletin revisions are part of the November 2014 executive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson, as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015.
What affect will these changes have?
Most importantly, starting October 1, 2015, many applicants will be able to file their adjustment applications earlier than they could before. Take, for example, the EB-2 category for India. Under the traditional Visa Bulletin, EB-2 Indian nationals would need a priority date earlier than May 1, 2005 before they could file an adjustment application. That’s over 10 years of waiting! The same facts under the new bulletin require a priority date earlier than July 1, 2011, a six year difference! National of the Philippines also saw major movement in both the F-1 (Unmarried Sons and Daughters of U.S. Citizens) and EB-3 (Skilled Workers, Professionals, and Other Workers) categories.
This does not mean that applicants will receive their green cards earlier, but they will receive the benefits tied to filing an adjustment application earlier. These benefits include the following:
- Earlier work authorization. This is a very big deal, because such work authorization is general and can be used for various purposes. Still, one should be cautious about doing anything that will violate the underlying non-immigrant status, such as H-1B status.
- Earlier receipt of travel documents. This is helpful, because sometimes non-immigrant visas, such as H-1B visas, can be delayed due to administrative processing problems or even technology glitches. For example, earlier this year DOS experienced system-wide technology problems and could not print visas for a few weeks. If the applicant has advance parole, he or she could travel on it without delay and claim the visa later.
- Earlier Portablility. After an employment-based adjustment application is pending 180 days, applicants are considered portable and the adjustment is considered valid even if the applicant changed employers, as long as the new job is in the same or a similar occupation. Previously, applicants from backlogged countries, such as India would have to begin the green card process all over again ever time they changed employers, because they could not benefit from portability.
Additionally, this process will enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine more accurate cut-off dates for visa issuance. Hopefully, this will decrease the wild fluctuations in such dates, allowing for a more dependable system.