On September 9, 2015, the US Department of State announced a new system for determining eligibility to file for adjustment of status to permanent residency. The announcement was included in the October 2015 Visa Bulletin. For the past several decades, the State Department’s monthly published Visa Bulletin has announced “cut off” dates to determine where immigrant visa applicants were in the various quota queues applicable to family, employment-based and Diversity-based immigrant visa categories. An immigrant visa applicant receives a “priority date” based on when there immigration paperwork is filed. Under the long-standing system, an applicant cannot file for adjustment of status until the published cut off date is later than their priority date. An adjustment of status application is critically important because individuals with pending adjustment applications can receive interim work authorization documents, travel documents and, once an adjustment application is pending 180 days or more, “portability” rights which allow an individual pursuing a green card based on employment to change employers as long as the new job is in the same or a similar occupation.
What is changing with the next Visa Bulletin?
As of October 1st, in an effort to maximize immigrant visa usage in a fiscal year, the Department of State has established a system where there are two different dates to track. “Application Final Action Dates” (AFADs) are essentially the cut off dates that have always appeared in the Visa Bulletin. “Dates for Filing Applications” (DFAs) are the dates applicants proceeding with consular processing of green cards should be notified to begin gathering documents for submission to the National Visa Center. Now those with a current DFA are allowed to file adjustment applications under the new system. USCIS would accept adjustment applications and issue employment and travel documents, but wait until the AFAD is current before approving the actual adjustment application. Essentially, USCIS will now handle this process the same way the Department of State has always done.
The new system applies to the family and employment-based green card categories. The Diversity Visa cut off system is not changed and one chart remains applicable in that category.
When does the new dual chart system go in to effect?
The rule takes effect with the October 2015 Visa Bulletin and applicants will not be able to file adjustments based on the new system until October 1, 2015.
What is the benefit of being able to file an adjustment of status application earlier?
Applicants who file for adjustment of status can simultaneously file for an employment authorization document and an advance parole travel document. After an employment-based adjustment application is pending 180 days, applicants will be considered portable and the adjustment application would be considered valid even if the applicant changed employers as long as the new job is in the same or a similar occupation.
How much do the DFAs differ from the AFADs (in other words, how much earlier can I file compared to when my adjustment will be adjudicated)?
The DFAs are anywhere from several months to several years later than the AFADs. Here are the differences on the October Bulletin.
Family categories
F1 – World (14.5 months); China (14.5 months); India (14.5 months); Mexico (7.25 months); Philippines (50 months)
F2A – World (10.5 months); China (10.5 months); India (10.5 months); Mexico (12 months); Philippines (10.5 months)
F2B – World (17.5 months); China (17.5 months); India (17.5 months); Mexico (5 months); Philippines (3 months)
F3 – World (10.25 months); China (10.25 months); India (10.25 months); Mexico (27.75 months); Philippines (22 months)
F4 – World (11.75 months); China (11.75 months); India (11.75 months); Mexico (13.25 months); Philippines (8 months)
Employment categories
EB1 – all categories continue to be current
EB-2 – World (current); China (28 months); India (62 months); Mexico (current); Philippines (current)
EB-3 – World (.5 months); (China) 23.5 months; India (15.75); Mexico (.5 months); Philippines (96 months)
EB-3 Other workers – World (.5 months); China (12 months); India (15.75 months); Mexico (.5 months); Philippines (96 months)
EB-4 – This category has generally been current but is being made temporarily unavailable since the religious worker category partially expires on September 30th and Congress has not yet extended
EB-5 – The EB-5 regional center category expires on September 30, 2015 so that category is unavailable for October 2015, but could change if and when Congress extends the program (which is expected). For EB-5s in the regular category, the difference between the AFAD and the DFA is 19.75 months.
Will the DFA dates advance at the same pace as the AFADs?
The State Department hasn’t commented on this.
What can a person do after filing for adjustment of status that they can’t on an H-1B or other non-immigrant visa status?
The individual would potentially be able to moonlight with an additional employer if they have are maintaining H-1B status. Also, travel may be eased if there are problems getting an H-1B visa at a consulate. And once the application is pending 180 days, it may be possible to change employers without depending on an employer sponsoring an H-1B transfer. However, there may be significant risks if the employee doesn’t transfer the H-1B and is denied an adjustment of status.
Can DFA dates retrogress?
Yes, just as AFADs can.
Is it safe to change employers after filing for adjustment of status under this new system?
After an application is pending 180 days or more, an applicant may be considered portable and switching to a new job that is the same or very similar is possible. Prior to that, applicants face a risk of the adjustment being denied. And if the former employer withdraws the I-140 before becoming adjustment portable, the applicant risks having to start green card processing again.
Is the discussed I-140 rule affected by this change?
USCIS is still expected to still issue a rule that would allow I-140s to continue to be pending even if an employer requests its revocation or the employer no longer is operating. And after an I-140 is pending a year, the applicant would be eligible for an Employment Authorization Document. The timing for issuing a proposed rule is not yet known.
Are the changes announced permanent?
Presumably. The State Department indicated that the change was meant to make adjustment of status processing run in a way consistent with consular processing in terms of ensuring cases are ready to approve when priority dates become current. That would ensure that the maximum number of visas are issued each year. There is no reason to believe that this process change is temporary.
Do I need to maintain my H-1B status?
Siskind Susser highly recommends maintaining H-1B status if at all possible. If the adjustment of status application is denied for any reason, the individual would become unauthorized from the point of denial unless there is an underlying H-1B status.
Do medical exams need to be filed since they’re only valid for a year?
USCIS has not indicated that any of the rules for adjustment of status filing are to be modified under the new system. USCIS I-485 instructions state that a medical exam may be submitted later in the process rather than only with the filing of the application. Since medical exams are only valid for a year, it may make sense to wait on the exam.
Will the new system change how long it will take to ultimately get a green card?
No. All that is changing is when people can file to adjust status, not how many people will ultimately get green cards. The time it takes to get a green card should be the same.
Why is the difference between the date for filing adjustment of status narrow in some categories and wide in other?
Good question and one that has not yet been explained. The State Department often comments on expected movement and demand in different categories and when more information is known, we will update this FAQ.
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If you have any questions about the new Visa Bulletin structure, please contact me at [email protected]. I will continue to update the Visa Bulletin FAQ page here on Visalaw.com as more information becomes available.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.