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Legal Update

Revised US Procedures for Determining Eligibility to Apply for Adjustment of Status and Immigrant Visas Announced

14 September 2015
Mayer Brown Legal Update

Beginning with the October 2015 Visa Bulletin, which was released on September 9, 2015, US Citizenship and Immigration Services (USCIS) and the US Department of State (DOS) have instituted a new process for determining when foreign nationals may submit their applications for immigrant visa (Form DS-230) and adjustment of status (Form I-485). This new process is an administrative response to President Barack Obama’s November 2014 executive actions, aimed at modernizing and streamlining the immigration process.

The monthly Visa Bulletin published by DOS indicates when visas are available to prospective immigrants based on their individual priority date. Historically, an immigrant in an oversubscribed category has had to wait until the cutoff date in the monthly chart matched the priority date for the immigrant petition. Starting with the October 2015 Visa Bulletin, there will be two charts for all family-based and employment-based preference categories.

The first chart, lists “Application Final Action Dates,” the dates on which the visas will be available for issuance. The new second chart, “Date for Filing of Visa Applications,” lists the priority date cut-off for filing an application for an immigrant visa or adjustment of status. The new filing date will allow many prospective immigrants to file their applications much earlier than they would have been able to under the old rules. Applicants for adjustment of status—and their family members—will be entitled to employment authorization and a travel documents, making continued extensions of nonimmigrant status unnecessary. Such early-filed status applications may only be approved, however, when the applicant’s priority date is reached on the “Action Dates” chart.

In addition, while DOS will issue visa bulletins with both charts moving forward, USCIS will determine on a month-by-month basis whether or not the visa bulletin may be used for that month’s filings for adjustment of status. As such, foreign nationals will need to closely read each month’s visa bulletin to determine both if their priority date is current for filing purposes and if USCIS is accepting Adjustment of Status applications based on the visa bulletin filing date.

Who is Eligible to File October 1, 2015?

Application Final Action Dates (Employment-Based)



Rest of the World

China

India

Mexico

Philippines

1st Preference

C

C

C

C

C

2nd Preference

C

01/01/2012

05/01/2005

C

C

3rd Preference

08/15/2015

10/15/2011

03/08/2004

08/15/2015

01/01/2007

Other Workers

08/15/2015

01/01/2006

03/04/2008

08/15/2015

01/01/2007

4th Preference

C

C

C

C

C

5th Preference (Non-Regional Center)

C

10/08/2013

C

C

C

Dates for Filing of Visa Applications (Employment-Based)



Rest of the World

China

India

Mexico

Philippines

1st Preference

C

C

C

C

C

2nd Preference

C

05/01/2014

07/01/2011

C

C

3rd Preference

09/01/2015

10/01/2013

07/01/2005

09/01/2015

01/01/2015

Other Workers

09/01/2015

10/01/2013

07/01/2005

09/01/2015

01/01/2015

4th Preference

C

C

C

C

C

5th Preference Targeted Employment Areas

C

05/01/2015

C

C

C

Those categories listed as “C” are “Current.” A quick look at the charts above makes clear that employment based immigrants from China, India and Philippines will benefit most from the new rules. For example, an Indian national in the second preference (advanced degree) visa category, with a priority date of June 30, 2011 may apply for adjustment of status and work authorization in October 2015 even though DOS is only now approving cases with priority dates of May 1, 2005 and earlier.


On the Horizon

The American Competitiveness in the Twenty-First Century Act of 2000 provides for job portability to a same or similar position with a new employer for immigrants whose applications for adjustment of status have been pending for more than 180 days. Thus, by allowing for early filing of such applications, the new rules will afford many immigrants who have been waiting in line for a green card the flexibility to change employers well before their green card status is approved. In addition, depending on how USCIS interprets the new rules on visa availability, dependent children who might have “aged-out” under the old rules may now be able to immigrate along with their parents, their age having been “frozen” upon the availability of a visa number. On the administrative front, the anticipated increase in adjustment of status filings may slow the processing time for employment authorization in the coming months until the new process and accompanying increase in filings evens out.

Authors

  • Paul Virtue
    T +1 202 263 3875
  • Elizabeth (Liz) Espín Stern
    T +1 202 263 3825
  • Grace Shie
    Partner
    T +1 202 263 3845
  • Paul Justas Sarauskas
    T +1 312 701 7019
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