United States: The State Department's Revised Visa Bulletin Opens Temporary Window For Those Applying For Green Cards

Immigration

Action Item: The U.S. Department of State ("DOS"), in coordination with U.S. Citizenship and Immigration Services ("USCIS"), has announced that it has revised "the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status." Under these new changes to the system, separate cut-off dates will permit the filing of permanent residence petitions even though final adjudication of the applications may be years away. This change will benefit a large number of applicants, especially those from China and India, who will now be able to file applications for permanent residence sooner than was possible under the previous system. Employers should identify eligible employees and ensure the filing of Adjustment of Status applications during October 2015.

Background and Overview

The Immigration and Nationality Act ("INA") limits the number of immigrant visas issued each year (with some exceptions as Congress and the President establish the admission numbers for refugees). The limited amount of immigrant numbers mean that even if USCIS approves an immigrant visa petition, depending on the applicant's nationality and preference category (specific immigrant visa petition classification), there may be no corresponding immigrant visa number immediately available. In many cases, a wait of several years may be required before the immigrant number becomes available. This "retrogression" of immigrant visa numbers has impacted Indian and Chinese nationals in the EB-2 and EB-3 categories significantly, creating waiting periods of more than 10 years in some cases.

The DOS' monthly Visa Bulletin is the mechanism by which DOS publishes the availability of the visa numbers. The newly announced revised format will accelerate when certain employer-sponsored foreign nationals and their eligible dependents may submit an application for adjustment of status to permanent residence, as well as applications for interim work and travel authorization.

Practical Impact to Employers and Employees

The revisions to the Visa Bulletin implement aspects of the administrative action on immigration announced by the President and the Secretary of Homeland Security last November (please click here to read our November client alert, More than Amnesty – How Obama's Executive Action Will Impact Your Business and Foreign Workers) and is intended to lessen the hardships of lengthy immigrant visa backlogs. The changes should also improve the process for determining immigrant visa demand, minimize visa retrogression, and help to ensure that all available immigrant visas are issued each year.

Under the prior format, an application for adjustment of status could only be filed in a preference-based case if the priority date for the case was earlier than the cut-off date for issuing a visa in that particular category—i.e., when the priority date is "current."

The new Visa Bulletin creates a more liberal cut-off date that permits applicants to file applications for adjustment of status earlier. A foreign national whose priority date is earlier than the application filing date for his or her country and employment-based preference category may submit an application for adjustment of status or an application for an immigrant visa in October 2015, along with his or her eligible dependents. A vivid example of this can be seen in the Visa Bulletin for October 2015, in the employment-based second preference category for India. Through these new revisions, although the "Final Action" cut-off date is May 1, 2005, any applicant who has a priority date earlier than July 1, 2011, may file an application for adjustment of status—something which, under the old system, they would not be able to do for potentially seven more years.

Being able to file an adjustment of status application earlier is important to foreign nationals because they and their eligible dependents can obtain an employment authorization document ("EAD") and travel documents (advance parole) while they await final action on their application. This provides them with greater flexibility and job mobility while awaiting the long visa backlogs, until Final Action is taken on their case.

The application filing window under the new bulletin is expected to be available only in the early part of the fiscal year. A foreign national whose priority date is current for application filing in October must be sure to file a complete Form I-485 adjustment of status application package with USCIS by October 30, 2015, to benefit. There is no guarantee this filing window will remain open past October 30, 2015.

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