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A new class of Cut-off Dates for the Visa Bulletin may allow foreign nationals to apply for adjustment of status years in advance of their cases being eligible for final adjudication

September 9, 2015 | Written by Laura J. Mazel

As we are about to start the government’s new fiscal year on October 1, 2015 and 10 long months after we reported on President Obama’s Executive Action announced last November 20, 2014 to fix many broken aspects of our immigration system, we are thrilled to report that the Department of State has finally taken action.  The State Department has created a new class of cut-off dates called “Dates for Filing Visa Applications” which take advantage of unused green card visa numbers.   This is a significant step.  It will allow foreign national employees to apply to Adjust Status up to several years in advance of being eligible to actually be granted green card status. Chinese and Indian national employees long caught in visa retrogression will particularly benefit.   Visa numbers for both cut-off categories are outlined below.

Background:  The State Department each month issues a Visa Bulletin which allocates how and to whom the 140,000 annual quota of permanent, employment based green cards may be granted.  The State Department provides “cut-off dates” based on the date a PERM labor certification or other permanent residence case was received by the government, the employee’s country of birth and the employment based preference classification.   Historically, Chinese and Indian professional employees have been particularly hard hit:   They often face 8-10+ years before they are allowed to finally apply for Adjustment of Status.  Additionally, employees and employers have typically faced a monthly roller coaster ride throughout the government’s fiscal year as monthly cut off dates fluctuate greatly forwards and backwards. 

The State Department’s Modernization: Effective October 1, 2015, the State Department is implementing the President’s call to modernize the Visa Bulletin given the thousands of permanent visas that go unused each year. 

Here’s what employers and employees need to know:

• The State Department has created two separate categories of cut-off dates that will each be reflected each month starting with the October Visa Bulletin.
  • The first will be an “Application Final Action Dates,” which will dictate what priority date needs to be “current” in order for the government to finalize the green card adjudication process.  
  • The second will be a “Dates for Filing Visa Applications,” which will dictate what priority date needs to be “current” in order for the government to accept a new application for Adjustment of Status. 
  • Regardless of the cut-off date category, once an employee files an Adjustment of Status application package, the employee should be able to secure all the consequent immigration benefits of being an Adjustment of Status applicant, including EAD work authorization for herself and dependent family members, Advance Parole - ability to travel internationally while the case is pending, and most critically, potential eligibility to change employers once the Adjustment of Status application has been pending 180 days.  
  • While we all wait for further clarification from the USCIS on mechanics of filing Adjustment of Status cases under the new cut-off date classification, employees may want to make appointments with government authorized physicians to obtain sealed medical exams so that they are in a position to file their Adjustment of Status cases on October 1, 2015.
  • Employers should also prepare for requests from many foreign national employees to file or upgrade pending I-140 petitions by Premium Processing ($1225 additional filing fee).

For October 2015, Application Final Action Dates and Dates for Filing Visa Applications cut-off dates are as follows:

First Cut-Off Date Category for Employment-Based Cases

“Application Final Action Dates”

EB1 - all still “CURRENT” 

EB2 

All others – still “CURRENT” 

China – jumps forward 6 years to January 1, 2012

India – retrogresses 8 months to May 1, 2005

Mexico – still “CURRENT” 

Philippines – still “CURRENT” 

EB3                          

All others – remains at August 15, 2015

China – jumps forward advances 6 years and 9 months to October 15, 2011

India – retrogresses 9 months to March 8, 2004

Mexico – remains at August 15, 2015

Philippines – advances 2 years 1 month to January 1, 2007

 

Second (New) Cut-off Date Category for Employment-Based Cases

“Dates for Filing Visa Applications”

EB-1 – all current

EB2 

All others – still “CURRENT” 

EB2 

All others – still “CURRENT” 

China –May 1, 2014

India – July 1, 2011

Mexico – “CURRENT” 

Philippines – “CURRENT” 

EB3                          

All others –September 1, 2015

China –October 1, 2013

India –July 1, 2005

Mexico –September 1, 2015

Philippines –January 1, 2015

This is certainly exciting news. We are reaching out to our clients with instructions on next steps and will report on developments including clarification from the USCIS on logistics of filing and whether to anticipate some visa retrogression of cut-off dates during the month of October.