Implementing part of President Obama's November 2014 executive actions on immigration modernization, the United States Citizenship and Immigration Services ("USCIS"), in coordination with the Department of State ("DOS"), revised the procedures for applicants waiting to file for employment-based or family-sponsored preference immigrant visa or adjustment of status (green card status) by changing the monthly “visa bulletin” system and allowing certain applicants to apply earlier before their eligibility (priority date) becomes current. The revised process is expected to immediately benefit hundreds of thousands of foreign nationals who seek to become U.S. permanent residents.

Background: The DOS publishes monthly visa bulletins which list visa cut-off dates for people who are in queue for green card applications based on employer or family’s sponsorship. If the individuals have a "priority date" earlier than the listed visa cut-off date for their particular visa category and country, they become eligible to file their immigrant visa applications or adjustment of status applications for permanent residence. Under the old system, visa bulletins listed only one date per category, which is the date the person becomes eligible for permanent resident status as well as the date the person can file an application.

Change: Starting October 2015, the monthly Visa Bulletins will list two dates: the "filing date," which determines when individuals can submit their permanent residence applications, and the "final action" date, which indicates when DOS or USCIS can make a decision on the applications. The filing dates listed in certain cases are a few years earlier than the final action dates.

Immigrant Visa Applicants (Consular Processing): Individuals who are applying abroad and whose priority dates are earlier than the date listed on the "Filing Date" chart will be contacted by the National Visa Center and instructed to begin the immigrant visa application process. A final decision will take place later when the priority date becomes current.

Adjustment of Status Applicants: Individuals who are applying in the United States are instructed to use the "Final Action Date" chart to submit their applications, unless the Visa Bulletin indicates that they may instead use the "Filing Date" chart. The October 2015 Visa Bulletin allows both family- and employment-based immigrants to use the "Filing Date" chart to file adjustment of status applications with USCIS for the month of October. (There is no guarantee that adjustment applicants will be able to benefit from the earlier "Filing Date" chart in any given month moving forward.)

What does this mean?: Qualified individuals may submit Immigrant Visa Application or Adjustment of Status Application earlier under the new system, and Adjustment of Status Applicants in that case will also be able to obtain Employment Authorization to work and Advance Parole to travel much earlier. This will benefit most immigrants, although some are more impacted than others. For instance, as of September 2015, an Indian national whose employer’s sponsorship application has recently been approved in EB-2 (Employment-based second) preference category faces approximately 10 years of visa backlog wait to be able to file Adjustment of Status Application and has to have their employer keep renewing a temporary work visa such as H-1B for the entire 10 year waiting period. Based on October 2015 visa bulletin, the same Indian national will be able to file an Adjustment of Status Application in approximately 4 years, instead of 10 years, at which point the individual can also obtain Employment Authorization Document. This will not bring a green card faster to the person, but will give more job flexibility and avoid the employer’s need to file H-1B extensions or amendments. The spouse and the children of the employee can also benefit from the EAD and Advance Parole earlier.

Because ability to use “filing date” for Adjustment of Status Applicants is uncertain beyond October 2015, qualified Adjustment of Status Applicants are encouraged to apply in October 2015.

Please contact our immigration counsels for further information.