October Visa Bulletin: Exciting New System Benefits Backlogged Categories!10 Sep 2015
The U.S. Department of State (DOS) is introducing a major beneficial change to the visa bulletin system, as officially announced in the release of the October 2015 Visa Bulletin. As previously rumored, effective October 1st, the monthly visa bulletin now will include two separate cutoff date charts for each visa category. One chart will be labeled “application final action dates” (FA), and will essentially serve the same purpose as the traditional cutoff dates chart from prior visa bulletins. The other chart will list “dates for filing visa applications,” (DF) and will typically provide cutoff dates that are significantly later chronologically than those found on the FA chart. As explained below, this DF chart often will allow applicants to move forward with applications for adjustment of status (form I-485) much earlier than under the prior, or legacy, visa bulletin system.
Understanding the ‘Dates for Filing’ Chart
The DF chart will serve two purposes. First, for cases filed for consular processing, those with a priority date earlier than the corresponding DF date should expect to “… be notified to assemble and submit required documentation to the National Visa Center.” It is unlikely that this change will be of major significance to foreign national applicants, however, because the actual immigrant visas in these cases will continue to be only be approvable based on the FA cutoff dates.
Foreign nationals in the United States who are eligible to apply for adjustment of status, on the other hand, stand to benefit greatly from this change. Each month, the visa bulletin “… may indicate the ability for such individuals to … use the [DF] charts …” Because the dates in the DF chart in the oversubscribed categories typically will be much earlier than the FA dates, this will likely shave years off of how long eligible applicants must wait before being able to file their respective I-485s.
For the October 2015 Visa Bulletin, those eligible to apply for adjustment of status will be able to file based on the dates listed on the DF chart. But, again, the ability to use the DF chart for purposes of filing an I-485 may vary from month to month. In months when the visa bulletin does not permit usage of this chart, only the less-favorable dates on the FA chart can be used as a basis for filing adjustment of status cases. More information on eligibility to apply for adjustment of status is available on the U.S. Citizenship and Immigration Services (USCIS) WebSite.
New System is Not Perfect, but Still a Major Improvement
It is important to understand that the ability to file an I-485 earlier in the immigration process will not actually lead to the applicant being granted status as a lawful permanent resident status (i.e. being issued a green card) more quickly. But, based on a pending I-485, one may also apply for corresponding benefits, such as an employment authorization document (EAD). Unlike the I-485, the EAD application may be adjudicated by the USCIS upon filing. Moreover, this new visa bulletin system primarily will benefit those applying under the employment-based categories, and, 180 days after filing an I-485, such applicants generally will become eligible to use the portability provisions provided under the American Competitiveness in the Twenty-First Century Act (AC21).
Still, while this change should substantially reduce wait times for many waiting to apply for adjustment of status, a great many people – especially those born in India or China – will still have to wait years before becoming eligible to file. Clearly, there is more work that needs to be done to improve the system. But, at least this visa bulletin change should shorten this wait, to a degree.
Employment-Based, First and Fourth Preferences (EB1 and EB4)
Except as explained below, the EB1 and EB4 categories are current for all countries of chargeability, both in the FA and DF charts. The EB4 subcategory for certain religious workers, on the other hand, is unavailable on the FA chart, but current on the DF chart. The reason for this is that the law creating the non-minister special immigrant category “sunsets” (i.e. expires) on September 30th. Unless Congress takes action to extend this provision, which seems likely, the program will end.
Employment-Based, Second Preference (EB2)
The EB2 category for all countries of chargeability, except for India and China, is current in both charts. For EB2 India, the cutoff date on the FA chart is set to May 1, 2005. The DF chart, however, has the far more favorable cutoff date of July 1, 2011. This means that an EB2 beneficiary with a priority date of June 30, 2011 or earlier may be eligible to file for adjustment of status on October 1st, even though the I-485 may not be adjudicated for years to come.
For EB2 China, the FA cutoff date is set at January 1, 2012. Conversely, the EB2 China DF date is comparatively less backlogged, with a cutoff date of May 1, 2014.
Employment-Based, Third Preference (EB3)
The cutoff dates for EB3 worldwide and EB3 Mexico on the FA chart are set at August 15, 2015, while the DF chart sets these categories at September 1, 2015 cutoff date. EB3 China’s cutoff date on the FA chart is October 1, 2011, but has an October 1, 2013 cutoff date on the DF chart. EB3 India, regrettably, does not see a huge benefit at this time with the new visa bulletin system. The cutoff date for EB3 India on the FA chart is March 8, 2004, while the date on the DF chart is only slightly more favorable, set at July 1, 2005.
Employment-Based, Third Preference (EB3) Other Workers.
The cutoff dates in the EB3 other worker category are identical to those in the general EB3 category, with one exception. EB3 other workers for China has an FA cutoff date of January 1, 2006, and a cutoff date on the DF chart of January 1, 2007.
Employment-Based, Fifth Preference (EB5)
On the DF chart, the EB5 category is current for all countries of chargeability, with the exception of China, which has an October 8, 2013 cutoff date.
On the FA chart, the EB5 category is split into two sub-categories: EB5 cases filed for targeted employment areas / regional centers (TEAs / RCs) and EB5 cases filed under the pilot programs. The TEAs / RCs subcategory is current for all countries on the FA chart, with the exception of China, which has an October 8, 2013 cutoff date. Conversely, the pilot program subcategory is unavailable across the board. As with the EB4 category, this is due to the law creating this EB5 subcategory being scheduled to sunset on September 30, 2015. Congress is widely expected to renew the law before the sunset date, but, for the meantime, the DOS has been forced to list this subcategory as unavailable.
Impact on Family-Based Preference Cases
The family-based preference categories also are being provided with more favorable DF cutoff dates. But, as most of these cases must be filed for consular processing, the DF dates are not expected to have a substantial impact on the wait times for these foreign nationals longing to be admitted to the United States as permanent residents. Still, MurthyDotCom will post a separate article in the near future examining how this change in the visa bulletin process, and the October 2015 Visa Bulletin in particular, impacts the family-based preference categories.
The changes in the visa bulletin are connected to President Obama’s administrative actions related to streamlining the immigration system. While it will still be necessary to wait for visa number availability to obtain permanent residence (green card) approval, it will be possible for many to file for adjustment of status much earlier in the green card process. This provides for greater employment flexibility, employment authorization for family members, advance parole travel options, and other I-485 related benefits. The Murthy Law Firm fully recognizes that this change still leaves much to be desired for many who continue to experience lengthy delays. Yet, from all appearances, this change is an improvement over the previous system. Please subscribe to the free MurthyBulletin for future updates related to the visa bulletin and other important immigration topics.
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