USCIS Announces Revised Procedures for Determining Visa Availability for Certain Applicants Waiting to File for Adjustment of Status

by Joseph McKeown

US Citizenship & Immigration Services (USCIS) along with the Department of State (DOS) is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revision in the process means that certain people will be eligible to file their adjustment of status applications (and the interim benefits that go along with that filing including work cards and travel permission) earlier than the date their Green Card priority date becomes current. USCIS states that the "revised process will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad."
Implementing President Obama's November 2014 executive actions on immigration—as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century—the revised process will enable foreign nationals (and their spouses) to obtain work cards and travel permission faster than they might have, and enable DOS to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the monthly Visa Bulletin. All this, according to USCIS, 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."

What Is the Visa Bulletin?

Every month the DOS publishes the current immigrant visa availability in a monthly Visa Bulletin. This Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date for both the family-based and employment-based preference categories. The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS; or, if a labor certification was required to be filed with the applicant’s immigrant visa petition, the priority date is when the labor certification application was accepted for processing by the Department of Labor. Availability of an immigrant visa means eligible applicants are able to take the final steps in the process of becoming US permanent residents—namely, applying for an immigrant visa at a US Embassy or Consulate abroad or else applying for an adjustment of status to permanent residency if in the US.

What is Changing in the Visa Bulletin?

Effective in the October Visa Bulletin, there are now two charts per visa preference category:

  • Application Final Action Dates (dates when immigrant visas may finally be issued); and
  • Dates for Filing Applications (earliest dates when applicants may be able to apply for adjustment of status).

Applicants can use the charts to determine when they are eligible to file their Form I-485, Application to Register Permanent Residence or Adjust Status. USCIS states that to determine whether additional visas are available they will compare the number of visas available for the remainder of the fiscal year with:

  • Documentarily qualified visa applicants;
  • Pending adjustment of status applications; and
  • Historical drop-off rate, including denials, withdrawals, and abandonments.

Who is Affected?

The October Visa Bulletin introduces the new adjustment filing date chart and allows many people who have been waiting for their Green Card priority date to become current to now file for the adjustment of status. Significantly the "Dates for Filing" for China-born and Indian-born nationals in the EB-2 category is May 1, 2014 and July 1, 2011, respectively, which is years ahead of these Green Card priority dates (January 1, 2012 and May 1, 2005, respectively). The changes also affect family-based visa applicants. Therefore, someone who has been waiting for a priority date for their Green Card may be able to apply for adjustment of status earlier. They will not get their Green Card unless the Green Card priority date becomes current but they will enjoy the benefits of being an adjustment applicant, namely the interim work card and travel permission that they can keep while their adjustment of status application remains pending.

For those eligible to apply, USCIS has more information about filing the adjustment of status. One of the most sought after benefits and advantages to filing adjustment of status is that applicants can concurrently file employment authorization and travel permission applications. An experienced immigration attorney will be able to advise if foreign nationals are eligible to file for adjustment of status and what the next steps would involve.

UPDATE SEPTEMBER 25, 2015: The Department of State (DOS) has today unexpectedly published an updated and revised October 2015 Visa Bulletin. This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and the revised dates affect priority and filing dates for certain nationalities. US Citizenship & Immigration Services explains:

Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process. The Dates for Filing Applications sections on pages 4 and 6, which have been adjusted, have been identified in bold type and highlighted.

Applicants are advised to use the revised chart when determining eligibility to file adjustment of status applications. Applicants are advised to consult with qualified immigration attorneys for questions about eligibility and the revised visa bulletin. We will post more information as we receive it.

UPDATE SEPTEMBER 8, 2015: Immigrants are protesting the amendments to the October Visa Bulletin by sending flowers to the Department of Homeland Security (DHS). Inspired by the nonviolent protest methods of Mahatma Gandhi, immigrants are sending bouquets and letters of protest decrying the bulletin reversal that affected thousands of excited applicants who were preparing to file their adjustment of status applications. Many applicants spent between $2,000 to $5,000 to prepare for the applications, not to mention countless hours and often days tracking down often difficult to obtain paperwork.
"We started making plans," Sridhar Katta, a mechanical engineer and M.B.A. who lives in Seattle with his wife and sixteen-year-old twin boys, said to CNN. "All our hopes were dashed within a matter of days." So far the Department of Homeland Security has only issued vague comments about the sudden turn-around. One DHS spokeswoman told CNN: "Further analysis of a recently published Visa Bulletin, intended to improve the issuance of green cards, showed that some of the new filing dates in that bulletin did not accurately reflect visa availability." Whatever happens, one can only hope that the sweet smell of the flowers will remove the sour taste left in our mouths.

UPDATE SEPTEMBER 22, 2015: In the latest Kafka-esq development in the ongoing saga stemming from the October 2015 Visa Bulletin updates and revisions that have affected thousands of immigrants, USCIS announced that beginning with the November 2015 DOS Visa Bulletin, if USCIS "determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas" they will state on the USCIS website that applicants may use the "Dates for Filing Visa Applications" chart. Otherwise, immigrants will need to use the the "Application Final Action Date" to determine when to file their adjustment of status applications. USCIS states that they anticipate making this determination each month and posting the relevant chart on their website within one week of visa bulletin publication.