Immigration and firm news


On September 9, 2015, the US State Department (DOS) and US Citizenship and Immigration Services (USCIS) issued a new joint policy regarding early filing of green card applications for people stuck in the quotas.  All business and family green card categories EXCEPT for “immediate relatives” (spouses and children under 21 and parents of U.S. citizens) are subject to annual category and per country limits.  When demand exceeds supply, there is a backlog or quota, and applications for green cards, whether filing at US embassies abroad or in the USA, cannot be filed and adjudicated until the quota is “current” or the backlog is cleared.  The quota is reported monthly in the Visa Bulletin published by DOS. The new policy will provide for two reports in upcoming Visa Bulletins starting with the October 1, 2015 edition, which is also the start of the government’s fiscal year. One report will be the standard family and employment based monthly quota situation, now called “Final Action Dates,” i.e., the dates for cases that can be adjudicated (granted or denied).  But, now there will an additional report showing “Dates for Filing Visa Applications.”  The reason this is a great benefit for some is that now applicants can apply for adjustment of status early if in the USA (and eligible for adjustment of status) AND also simultaneously apply for the usual adjustment based work and travel permits that are normally included in the $1070 filing fee.  There is not a similar work/travel benefit for those filing for immigrant visas at embassies abroad. The new program starts on October 1, 2015.  Therefore, it’s important to look at the October 2015 Visa Bulletin to determine who can do this. As a reminder, this policy applies only to preference categories, not immediate relatives or diversity lottery applicants.

For example, let’s say that someone from India immigrating in the employment based third preference category (EB-3) has a priority date of May 15, 2005. (The priority date is the date PERM was filed for labor certification and reserves the person’s place in line. ) For October 1, 2015, visas will be issued to (granted to) Indian EB3 applicants with priority dates of March 8, 2004 or earlier when reading the “Final Action” Employment Based Chart per the October 2015 Visa Bulletin.  The EB-3 applicant normally would have more than a year to wait until the quota is current to FILE an adjustment of status or immigrant visa application.  However, with the new policy, looking at the Filing Date chart below the Final Action Chart, this person can now file for his immigrant visa or adjustment of status application in October 2015 because filings are permitted for people with priority dates of July 1, 2005 or earlier. The quota still is not current next month, so there still cannot be a Final Action/Decision on the adjustment or immigrant visa application. But, this means this EB-3 applicant and his dependents filing with him can file for adjustment of status, work permits and travel documents while the case is pending until the quota becomes current for Final Action (i.e., decision on the adjustment of status application for people with priority dates of May 15, 2005 or earlier).  Of course, EB-3 applicants must always maintain lawful status in order to adjust in the USA with some limited exceptions. Otherwise, they must consular process immigrant visas.

This policy change is part of President Obama’s November 2014 package of Executive Action announcements, one of which was to modernize and streamline the existing permanent immigration system that has suffered from years of backlogs.  While only Congress can change the numbers and per country allocations, this particular improvement is only a procedural change as to when applications may be filed.  The same statutory rule that the quota must be current for green cards to be granted remains the same since only Congress can change that rule.  Further, most people in the U.S. not in lawful status must still consular process with certain exceptions. Therefore, they will not benefit from the work and travel provisions like those individuals who can file for adjustment of status.  Congress still needs to do its job and enact statutory reform that changes the numbers and categories for the 21st Century.  Meanwhile, the people most likely to benefit from this change are:

  • Individuals stuck in the employment-based backlogs who already have employment authorization through an existing temporary visa.  This procedural change will give them greater flexibility and job mobility while allowing them to maintain their status.
  • Individuals stuck in the family-based backlogs who are allowed to file for adjustment of status, will be able to seek employment while waiting their final determination, bringing more economic stability to these families-though in most cases it will only reduce their wait for employment authorization by a matter of a few months or a year.
  • The new system should provide the DOS and USCIS with better data for determining overall visa demand which should allow the DOS to make better predictions regarding future backlog movement.