U.S. Citizenship and Immigration Services and the U.S. State Department have announced significant changes to make it possible for eligible employer-sponsored foreign nationals to file applications for adjustment of status to permanent residence before an immigrant visa number becomes available.
The new changes establish a separate priority date list for the filing of adjustment of status applications, as well as a separate list for when adjustment cases can be approved. In October 2015, for example, USCIS will accept adjustment of status applications from Indian nationals with EB-2 priority dates earlier than July 1, 2011, even though immigrant visa numbers for final approval of cases are available only for Indian nationals in this category with priority dates earlier than May 1, 2005.
What are the practical effects of filing an adjustment of status application if it won’t be processed for many years? There are several. First, adjustment of status applicants and their eligible dependents are eligible to apply for employment authorization and travel permission for however long it takes visa numbers to become available for their cases to be approved. This also means that employers could decide not to undertake filing H-1B or other non immigrant extensions for employees, since they will be eligible for work authorization (EAD cards) issued approximately 90 days after they file their adjustment applications.
Second, when adjustment of status applications have been pending for more than 180 days, applicants may change jobs without jeopardizing their permanent residence cases, provided the new job is in a “same or similar” occupational classification as their old job. The earlier permitted filings of adjustment applications will accelerate the process so that employees may be promoted into similar positions years sooner than the law formerly allowed, without jeopardizing their permanent residence cases.
These changes will, however, also bring a negative effect for companies that have sponsored employees for permanent residence. Under current law, adjustment of status applicants are permitted to change employers once 180 days have passed since the applications were filed. As the new changes allow for earlier filings of adjustment applications, this will accelerate the date by which employees will be able to switch employers without affecting their eligibility for permanent residence.
We will be in touch in the coming days as we identify your employees who will be eligible to take advantage of these significant changes. If you would like to discuss the effect on your company, please feel free to contact us.
Compliments of Kramer Levin – a member of the EACCNY