On September 9, 2015, the U.S. Department of State (DOS) and United States Citizenship and Immigration Services announced important changes impacting certain individuals in the permanent residence (“green card”) process. This change will allow some individuals to file the last step of the green card process, the application for adjustment of status, even if their priority date is not current.
The DOS has been moving steadily towards reforming its process for calculating immigrant visa (“green card”) availability. In July 2015, the White House released its report on “Modernizing & Streamlining Our Legal Immigration System for the 21st Century.” The report stated that, “[l]ater this year, [the DOS], in consultation with [the Department of Homeland Security], will revise the monthly Visa Bulletin to better estimate immigrant visa availability for prospective applicants, providing needed predictability to nonimmigrant workers seeking permanent residency.”
The DOS has now acted. Today, the DOS announced changes that will allow eligible foreign nationals to file an application for adjustment of status to permanent residence before an immigrant visa becomes available to them. However, the application for adjustment of status still cannot be approved until an immigrant visa becomes available (i.e., the priority date becomes current).
Each month, the DOS publishes a Visa Bulletin containing cut-off dates based upon a foreign national’s country of chargeability and his or her employment-based preference category. Up until now, in order to file an application to adjust status to permanent residence, the individual’s priority date must be current. For most employment-based applications, a foreign national’s priority date is the filing date of their labor certification application (i.e., PERM). That date becomes “current” if it is prior to the cut-off date currently listed in the Visa Bulletin that applies to that individual’s country of chargeability and employment-based preference category.
Effective October 1, 2015, the Visa Bulletin will list two charts for each preference category and country of chargeability. One chart will list the traditional final action dates with cut-off dates showing immigrant visa availability. A second chart will show cut-off dates for filing an application for adjustment of status (AOS) to permanent residence.
Application Final Action Dates for Employment-Based Preference Cases
|Employment- Based||All Chargeability Areas
Except Those Listed
Dates for Filing of Employment-Based Visa Applications
|All Chargeability Areas
Except Those Listed
As of October, 1, 2015, foreign nationals with priority dates that qualify under the second chart will be able to file AOS applications (including their dependents). The principal applicant and dependents will be eligible to apply for travel and employment authorization documents. The foreign national and his or her dependents will not, however, be eligible to receive permanent residence until an immigrant visa becomes available as indicated for the immigrant visa cut-off dates (the first chart).
Employment-based immigrants facing a visa backlog, particularly from China and India, will benefit from the AOS acceptance cut-off dates that will be reached sooner than the immigrant visa cut-off. Significant numbers of Chinese and Indian nationals will be able to file AOS applications now that the new acceptance dates are available as of October 1, 2015. However, citizens of India and China will likely continue to face a significant backlog to receive the green card (or immigrant visa).
Compliments of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. – A member of the EACCNY