NPZ Immigration Law Blog

By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq.

United States Citizenship and Immigration Services (USCIS), in coordination with the Department of State (DOS), has revised the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revised process will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.

This revised process will enhance the DOS’ ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. This will help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates.

The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by the President Obama and as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015.

Listed below are the five specific points which one should know about the October 2015 Visa Bulletin in order to obtain immigration benefits emanating from employment- and family-based green card petitions (I-130s/I-140s):

• Beginning with the October Visa Bulletin, there are now two charts listing dates for each preference category and country of chargeability: (1) An “Application Final Action Dates” chart (“Final Action Date”); and (2) a “Dates for Filing Applications” chart (“Filing Date”). Previously, the Visa Bulletin only listed a single chart of cut-off dates, which was the same as the newly labeled “Final Action Date” chart.

• Immigrant Visa Applicants (Consular Processing): Individuals with priority dates earlier than the date listed on the “Filing Date” chart for their preference category and country of chargeability will be notified by the National Visa Center that they may assemble and submit their documentation and begin the immigrant visa application process. However, a final decision on the immigrant visa application cannot take place until the priority date is current (i.e., is earlier than the “Final Action Date”).

• Adjustment of Status Applicants: Individuals who are in the United States and are eligible for adjustment of status must use the “Final Action Date” chart to determine when they may submit their applications for adjustment of status, unless the Visa Bulletin indicates that they may instead use the "Filing Date" chart. The early “Filing Date” chart may only be used by adjustment applicants if USCIS determines there are sufficient immigrant visas available to support the filing of additional adjustment applications beyond that which would be received under the “Final Action Date” chart.

• The October 2015 Visa Bulletin permits 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. Thus, individuals who have a priority date earlier than the “Filing Date” cut-off for the month of October may submit an adjustment of status application in October. These individuals will also be able to obtain employment authorization and advance parole as an adjustment applicant. However, please note that there is no guarantee that adjustment applicants will be able to benefit from the earlier “Filing Date” chart in any given month moving forward.

• For people who are in the United States stuck in the long visa backlogs, this means they will be able to receive employment authorization and travel documents while they await final action on their cases.

As per the October 2015 Visa Bulletin, The “Filing Date” for most of the family-based categories is less than 1 year and up to around 2 years earlier than the “Final Action Date,” with the exception of F-1 Philippines with a difference of 4+ years, and F-3 Mexico with a difference of 2+ years.

The employment-based categories most impacted by the October Visa Bulletin are:
• EB-2 India: Final Action Date = 5/1/05; Filing Date = 7/1/11
• EB-3 Philippines: Final Action Date = 1/1/07; Filing Date = 1/1/15
• EB-2 China: Final Action Date = 1/1/12; Filing Date = 5/1/14
• EB-3 China: Final Action Date = 10/15/11; Filing Date = 10/1/13

For more information, or if you believe that you or a friend or colleague may be able to benefit from this recent announcement, please feel free to contact the Immigration and Nationality Lawyers at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. at 201-670-0006 (x107) or by e-mailing us at info@visaserve.com.