Virginia, US
The State Department’s monthly Visa Bulletin will take a new form on October 1. The change will allow certain foreign nationals and their eligible dependents to submit applications for adjustment of status to permanent residence, as well as applications for interim work and travel authorization, well before an immigrant visa is available to them. This window of opportunity—which may only last for one month, though that is still unclear—is a boon both to businesses that employ foreign workers in the United States, and to individual foreign nationals whose plans to immigrate are stymied by what are often years-long backlogs.
 
The change is a centerpiece of President Obama’s executive action on immigration , which is meant to go well beyond the deferred action for certain undocumented immigrants which has been the focus of most press coverage.
 
What is Changing?
 
As announced by the President and the Secretary of Homeland Security last November, the Administration is committed to modernizing and improving the way in which our country’s immigration visa programs are managed. By allowing principal applicants and their family members to submit applications for adjustment of status before immigrant visa numbers can actually be allocated to them, they can obtain interim work and travel authorization which can be renewed until they are granted permanent residence. This benefit is especially valuable to employees who may wish to avail themselves of I-140 portability (allowing them to move to a new job for the sponsoring employer, or to a job with another employer, once their adjustment application has been pending for more than 180 days), and to spouses who may not have been eligible for employment authorization before.
 
Under the usual practice, a foreign national can file an application to adjust status (or an application for an immigrant visa abroad) only when his or her priority date is “current” in the Visa Bulletin for his or her native country and preference category. A foreign national’s priority date—i.e., the date on which a labor certification (if required) or a Form I-140 immigrant worker petition was filed on his or her behalf—is current if it falls before the cut-off date listed in the Visa Bulletin.
 
The reformed Bulletin lists two critical cut-off dates for each backlogged family- and employment-based preference category and country: (1) a cut-off date for actual immigrant visa availability, as has traditionally been reported in the Bulletin; and (2) a new cut-off date for eligibility to file an application for adjustment of status or an immigrant visa.
 
The second set of cut-off dates for October are mostly one or two years later than the immigrant visa availability date, depending on the preference category and country. Those who qualify under one of the second cut-off dates (which are being called “dates for filing”) will still not be able to receive a green card until an immigrant visa number becomes available to them. But they and their eligible dependents will be able to file their applications for adjustment of status, as well as applications for interim work and travel authorization, once their priority date reaches the second cut-off date.
 
Impact on China and India Employment-Based Categories
 
The new, two-tiered format of the Visa Bulletin will have the greatest impact on the employment-based immigrant visa categories for persons born in China and India, which have typically suffered from the lengthiest backlogs in the employment-based immigration system.
 
For example, immigrant visas for Chinese beneficiaries of approved I-140 immigrant worker petitions in the second employment-based (EB2) immigrant visa category are only available to persons whose priority date is before January 1, 2012 in the October Visa Bulletin. The Department of State is calling this the “application final action date.” However, Chinese EB-2 beneficiaries are eligible to file an adjustment application with U.S. Citizenship and Immigration Services (USCIS) if their priority dates are before May 1, 2014—meaning they can file a full two-and-a-half years earlier than under normal practice. For the Chinese EB-3 category for professionals and skilled workers, the application final action date is October 15, 2011, while the date for filing is October 1, 2013.
 
The impact is even more dramatic for certain Indian nationals. An India-born beneficiary of an approved I-140 immigrant petition in the EB2 category is only eligible for an immigrant visa if his or her priority date is before May 1, 2005 in the October Visa Bulletin. But that same person is eligible to submit an adjustment application to U.S. Citizenship and Immigration Services (USCIS) if his or her priority date is before July 1, 2011—a difference of more than six years. The EB-3 professional/skilled worker application final action date for India is March 8, 2004, while the date for filing is July 1, 2005.
 
Filing Window Expected to Close Quickly
 
This early application filing opportunity is expected to be available only in the early part of the fiscal year, which begins on October 1, which means there will be a rush to file adjustment and related applications by October 30, 2015. The principal applicant’s spouse and unmarried children under the age of 21 are eligible to file an adjustment application with the principal. Each family member must submit his or her own application, and all adjustment applicants must be physically present in the United States when their applications are filed.
 
The Department of State will monitor the pace of filings during the month of October to determine how long to keep this special filing opportunity open. An unexpectedly large volume of filings in the month of October could lead to retrogression of priority dates in November. Though the application filing window may remain open after October 2015, this is not guaranteed.
 
This change is not only good for business and families, by providing more clarity and peace of mind to the individuals going through the process of seeking permanent residence in the United States. It also helps the State Department make more reliable determinations of visa demand, which should, in turn, help ensure that all immigrant visas authorized by Congress are actually issued to eligible individuals each year.