New Visa Availability System Expedites Adjustment of Status Filing: Years Eliminated From Wait For EB-2 and EB-3 for Indian and Chinese Nationals

Thursday, September 10, 2015 - 9:45am

The U.S. Department of State (DOS) released its October 2015 Visa Bulletin (October 1st begins the Federal Government's 2016 Fiscal Year) with a new system for determining employment-based and family-based immigrant visa availability.

It is important to note that the earliest that filings may be made under this new system is October 1, 2015.

As we previously noted, this change is a direct result of President Obama's Executive Action in November 2014.

What is New?

The new Visa Availability System published in the monthly Visa Bulletin replaces the single cut-off date system to apply for approval of adjustment of status, with a new a dual-cut-off-date system that allows applicants to apply much sooner, receiving the benefits afforded to those in the final stage of the immigrant visa process as they await approval.

"Application Final Action Date" (approval). This cut-off date is essentially the same as the "priority date" cut-off date of previous years. The "Application Final Action Date" cut-off date will be posted in the monthly Visa Bulletin and will regulate when an adjustment of status application or immigrant visa application may be approved and an immigrant visa ("green card") issued.

"Date for Filing Application" (acceptance). This cut-off date regulates when an adjustment of status application may be filed with the USCIS. This acceptance date will be prior to the date in which an immigrant visa may be approved/issued. While the new system does not make applicants in high demand immigrant visa categories permanent residents any sooner, it does provide the opportunity for them to obtain employment authorization and travel documents much soon ( in some cases years earlier), than they would otherwise, which alleviates the dependency on visas for temporary work authorization, and allows them to change employers.

USCIS has already posted a detailed explanation of when applicants may file for adjustment of status under the new system.

What Does This Mean for Foreign Nationals and Their Employers?

This new "acceptance" cut-off date not only permits a foreign national to file an application to adjust status at a date in advance of when the immigrant visa ("green card") can be approved, but also provides such foreign national with the opportunity to obtain the benefits available with a pending adjustment of status application. Such benefits include an employment authorization document (work permit) and advance parole (travel document). In addition, for employment-based applications, a foreign national may also be eligible for portability based on an approved I-140 Immigrant Worker Petition. This "acceptance" cut-off, as with the "approval" cut-off date will be announced each month and may move forward, move backward or become unavailable. Monthly movement may be a matter of days, weeks or years, just as we currently experience with the immigrant visa system.

According to the United States Citizenship and Immigration Services (USCIS) Alert, "This revised process will enhance DOS's 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."

Please contact your Maggio + Kattar attorney for further information.

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