As part of the Obama administration’s efforts in modernizing our immigration system, the Department of State (DOS) has changed the procedure in determining visa availability for both the employment-based and family-based preference petitions.
In its October 2015 visa bulletin, the DOS listed two important dates: the “filing date” and the “final action date.”
The “filing date” is the date when beneficiaries will be allowed to start their immigrant visa application process or file for adjustment of status. Although their green card applications will not be adjudicated until the “final action date” listed, adjustment applicants will, in the meantime, be able to get benefits such as employment authorization and advance parole.
Before this change, the Department of State only listed the cut-off date for family-based and employment-based preference categories in the monthly visa bulletin. The cut-off date is the priority date of the first visa applicant who could not be reached within the limit. If an applicant’s priority date is before the cut-off date listed, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.
The new rule allows for early filing for adjustment of status so long as the beneficiary’s priority date is earlier than the “filing date” listed in the visa bulletin.
To illustrate, Philippine nationals with a priority date earlier than January 1, 2015 under the third employment-based third preference category (EB-3) may file for adjustment of status beginning October 1, 2015. The new rule shortens their wait period since the Philippine EB-3 cut-off date listed in the October visa bulletin is January 1, 2007.
The cut-off date listed for each preference category is the same as the “final action date” or the date when a decision on their green card application may actually be issued.
The October visa bulletin also shows that the new rule advances eligibility for adjustment of status of India’s EB-3 beneficiaries by 6 six years with the “filing date” of July 1, 2011 and “final action date” of May 1, 2005. Meanwhile, China’s EB-2 “filing date” of May 1, 2014 is two years in advance of its January 1, 2012 “final action date”.
Also worth noting under the family-based preference categories is the Philippine F-1 category (brothers or sisters of U.S. citizens) which has a “filing date” of four years ahead of its “final action date.”
The new rule will provide qualified beneficiaries of employment-based petitions “greater flexibility” and “job mobility” to allow them to maintain status while they are waiting for a visa number. It will also allow the beneficiaries and their dependents to obtain work permits and advance parole. The new rule will also protect their dependent children from aging out under the Child Status Protection Act (CSPA).
To be eligible to adjust status, the applicant must be lawfully present in the United States or must be covered by Section 245(i) of the Immigration and Nationality Act.
For visa applicants who are outside the U.S., the National Visa Center (NVC) will notify them to start their visa application process. However, final decisions on their visa applications will not be issued until their priority dates are current.
(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281)