Sep 10, 2015

USDOS and USCIS Announce Significant New Procedures to Allow Permanent Residence Applications to Be Filed Prior to Visa Availability

There has been a hugely significant development in the procedures of determining when a preference visa-based application for adjustment of status to lawful permanent residence may be filed.  Most dramatically affected by this new policy are foreign nationals in the employment-based categories who were born in India, China or the Philippines.  Additionally, on the family-based side, literally every category and nationals of every country will benefit to some extent.  This change goes into effect on October 1, 2015.

To this point, a foreign national can file an adjustment of status application only when an immigrant is available to them based on their priority date (date of labor certification application or immigrant petition filing) and country of birth.  Because of limited visa availability and heavy demand for such visas, especially from nationals of China, India, Mexico and the Philippines, some foreign nationals and their families had to wait years in order to file for adjustment of status – the final step toward U.S. permanent residence.  For example, a look at the September 2015 Visa Bulletin issued by the U.S. Department of State (DOS) indicates that a 3rd preference employment-based visa is available to an Indian national with a priority date prior to 01/01/2006 – a backlog of almost nine calendar years.  When taking into account the fact that the dates do not move a full month each month, the backlog is really more like 10-15+ years. 

This visa quandary has resulted in numerous hardships for foreign nationals, their family members, and their employers.  Foreign national employees are not able to advance in their careers.  Family members are not able to easily take up employment.  Travel abroad can be risky in terms of the ability to return to the U.S. on a timely basis.  Employers are not able to recognize, reward and promote foreign national employees who have excelled and benefited their companies.  Back in November, 2014, one of the Obama administration’s Executive Actions on Immigration was a call to modernize the immigrant visa system in such a way that it worked more efficiently and resulted in less hardship and unfairness to the beneficiaries of these immigrant petitions.  This new policy emanates directly from those challenges issued to the DOS and U.S. Citizenship and Immigration Services by the Obama administration.

So how are foreign nationals impacted by this development?  In a nutshell, they are able to file their applications for adjustment of status sooner than they would have been able to otherwise, and to obtain interim benefits (employment authorization and travel permission) for themselves and their immediate family members, including spouses and children. 

Beginning with the October, 2015 Visa Bulletin, the DOS will now provide two charts per visa preference category.  One chart will indicate the Application Final Action Dates – those dates when visas may finally be issued to the foreign national beneficiaries.  The second, new chart will indicate the Dates for Filing Applications – those earliest dates when applicants may be able to apply for adjustment of status.

Thus, foreign national beneficiaries will be able to file their adjustment of status applications with the USCIS, and then when a visa becomes available according to the DOS (which could literally be years), the USCIS can go ahead and approve the applications for adjustment of status.  Meanwhile, applicants are able to obtain employment authorization cards and travel permits while the AOS applications are pending. 

Going back to our EB-2 India example, beginning on October 1, 2015, according to the Application Final Dates chart, foreign national employees (and their immediate family members) with a priority date prior to 05/01/2005 will have a visa available to them, and their final applications for permanent residence can be approved.  However, looking at the new Dates for Filing Employment-Based Visa Applications, those with a priority date prior to 07/01/2011 will be able to go ahead and file their applications for adjustment of status.  Prior to this new policy, those EB-2 foreign nationals would have had to wait at least another six years before they could file their applications.  

Finally, it is important to note that this new policy starts on October 1, 2015, and will continue to be in place for the foreseeable future.  Applications can be filed anytime during the entire month of October – they do not have to be in the door on October 1st.  Additionally, unlike the visa dates in the Application Final Dates chart, we do not expect to see dates retrogress in subsequent months.  Thus, applications can be prepared and filed in an orderly and efficient manner without having to rush and push to get them in by a certain date.

It should also be pointed out that with some limited exceptions, this policy change will apply to documented foreign nationals who are beneficiaries of either an employment-sponsored or family-sponsored immigrant petition – it does not benefit foreign nationals in the U.S. without legal status.

To learn more, or if you have any questions about the issues discussed in this alert, please contact your immigration counsel at Smith, Gambrell & Russell, LLP.                       

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.    


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