USCIS, State Dept. Revise Procedures for Determining Visa Availability for Adjustment of Status Applicants

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U.S. Citizenship and Immigration Services (USCIS), in coordination 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 adjustment of status. Applicants will be able to file adjustment applications before their priority dates become current, based on a new second chart in the Visa Bulletin listing when adjustment applications can be filed. This change is expected to be particularly significant for Chinese (EB-2), Indian (EB-2), and Philippines (EB-3) applicants, who have experienced large backlogs.

USCIS said 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.” USCIS also said the revised process will enhance DOS’s ability to predict more accurately overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. “This 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,” USCIS said.

The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Barack Obama and Secretary of Homeland Security Jeh Johnson.

The changes include two charts per visa preference category in the DOS Visa Bulletin:

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

Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. USCIS said applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status. To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:

• Documentarily qualified visa applicants reported by DOS; 
• Pending adjustment of status applications reported by USCIS; and 
• Historical drop-off rate (for example, denials, withdrawals, abandonments).

The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority dates. The priority date is generally the date when the applicant’s relative or employer filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification must 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.

Comments. The Alliance of Business Immigration Lawyers (ABIL) commends DOS and USCIS for announcing these important changes that will provide much needed relief to Indian, Chinese, and Philippines applicants who are caught in the backlogs, such as the ability to obtain employment authorization and more job mobility. Even beneficiaries of family-based petitions will be able to take advantage of these benefits, if they are eligible to file for adjustment of status in the U.S. ABIL also proposed this change in its comments on modernizing the U.S. immigrant and nonimmigrant visa system in response to a notice published in 79 Fed. Reg. 78458 (Dec. 30, 2014), summarized at http://www.abil.com/news_detail.cfm?NEWS_ID=1225.

Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” USCIS similarly views visa availability opaquely as including “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.” These new interpretations provide more flexibility for DOS to move the filing date even further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application, along with all the accompanying benefits, and to even lock in the age of a child under the Child Status Protection Act, whether the applicant is in the United States or processing at a U.S. consulate. While ABIL strongly advocates that the same interpretation concerning visa availability that applies to eligibility for adjustment of status should also apply to the CSPA, we need to await further confirmation from the government on CSPA eligibility. Below are some preliminary observations after a brainstorming session with a few members of ABIL on September 9, 2015. While we await further guidance from DOS and USCIS to be sure, ABIL strongly advocates these positions:

• I-485 adjustment applications filed under the new filing priority date will result in the same benefits: EAD, Advance Parole, 204(j) portability, and CSPA protection. 
• With respect to an “after acquired” spouse, where the principal already has a pending 
I-485, the spouse can file under the new filing priority date. Ultimately, both the principal’s and spouse’s I-485 application will be adjudicated when the priority date of the principal becomes current under the final action priority date. 
• There is no prohibition to filing a concurrent I-140/485 or I-130/485 under the filing priority date. 
• With respect to a priority date that has been captured from an old EB petition, the same rules apply—you have to see whether the captured priority date coincides with the filing priority date or the final action priority date. 
• There may be no need to submit a medical with an I-485 filed under the filing priority date, especially when there is a long interval (years) between the filing and the final action priority date. 
• The new policy applies to both family I-130 and employment I-140 petitions. 
• With respect to consular processing of cases, the filing priority date would be equally applicable, especially to lock in the age of a child under CSPA. 
• Do we have to rush to file all our I-485s in October 2015? The jury is not yet out whether the dual priority dates system will cause more backlogs and retrogression, although probably not, since the filing priority date, unlike the 2007 July Visa Bulletin, does not signify that visas are immediately available. We have enough time (around the 10th of the month) to wait and watch how the dates will progress in November and beyond.

This change may also create an interesting strategic consideration for H-4 spouses who are eligible for an EAD. Will it be better to obtain an EAD as an H-4 spouse or obtain an EAD/Advance Parole “combo” card based on an I-485 filing? There will be pros and cons to each approach depending on the specific individual’s situation.

See also:

• The announcement about the changes 
• Additional information about when to file an adjustment application 
• The executive actions being implemented in the Visa Bulletin were detailed in the White House report, “Modernizing and Streamlining Our Legal Immigration System for the 21st Century, issued in July 2015 (PDF) 
• The changes are first appearing in the October 2015 Visa Bulletin