Corporate Immigration Law News

In a largely unanticipated move, the State Department (“DOS”) announced on Friday that it significantly rolled back the Adjustment of Status (“AOS”) application filing cut-off dates it established under the Obama Executive Action less than three (3) weeks ago. Specifically, on September 25, DOS released a revised visa bulletin for October 2015, superseding the bulletin that was originally published on September 9. The revised October Visa Bulletin contains new and earlier filing cut-off dates than those dates contained in the original October Visa Bulletin issued on September 9.

These revised filing cut-off dates are apparently a response to USCIS concerns over the Service’s ability to process such a huge volume of AOS applications. In response to such concerns, the “Dates for Filing Visa Applications” for certain visa preference categories, particularly the employment-based second preference (EB-2) category for China and India, have been significantly rolled back.

The retrogression of these filing cut-off dates will serve to dramatically reduce the number of individuals permitted to pre-file for Adjustment of Status on October 1 based on the originally published October Visa Bulletin. This sudden reversal of filing cut-off dates is a great disappointment to employers, their foreign national employees, and immigration professionals alike, all of whom had already begun the process of preparing a number of filings in reliance upon the anticipated October 1 filing date.

Litigation has ensued against the Federal Government – only time will tell if such litigation will yield a positive outcome.

Stay tuned!

Today, the U.S. Department of State (DOS) announced a significant reform to the way the agency forecasts green card availability (through the issuance of a monthly Visa Bulletin) for employment-based green card applications. This reform now makes it possible for eligible employer-sponsored foreign nationals to file the third and final step of the green card process, the Application for Adjustment of Status to permanent residence (Form I-485), before an immigrant visa number otherwise becomes available to them. Based on this key development, the foreign national employee (and his/her eligible dependents) will be eligible to apply for interim employment authorization (Form I-765) and travel documents (Form I-131) during the often lengthy wait for a green card.

Up until yesterday, under the previous (broken) regime, a foreign national was only eligible to file an application to adjust status (or an application for an immigrant visa abroad) when his or her “priority date” became “current”, as specified in the monthly Visa Bulletin issued by DOS. By way of background, a foreign national’s priority date is the date on which a labor certification (if required) or a Form I-140 immigrant worker petition was filed on his/her behalf. The priority date becomes is current if it falls before the cut-off date listed in the monthly Visa Bulletin.

Under the new, revised procedures, the Visa Bulletins going forward will now provide 2 different charts, which charts list two critical cut-off dates for each backlogged employment-based preference category and country. The first chart (which is the same chart that has always appeared in the Visa Bulletin), has not changed as it simply lists the cut-off date for actual immigrant visa availability. This chart is now referred to as the “Application Final Action Dates”, which chart provides dates when green cards / immigrant visas may finally be issued. The second chart is the new addition to the Visa Bulletin that provides a new cut-off date for eligibility to file an Application for Adjustment of Status or, alternatively, apply for an immigrant visa abroad. This chart is referred to as “Dates For Filing Applications”, which provides the earliest dates when applicants may be able to apply for adjustment of status, despite no immigrant visa number being available.

To illustrate the stark benefits of the revised procedures, according to the October 2015 Visa Bulletin, the Application Final Action Date for the Employment-Based Second Preference (EB-2) Category for Indian Nationals is May 1, 2005. This translates to a backlog of more than ten (10) years for Indian nationals filing advanced-level positions to become eligible to file the third and final step of the green card process. Simply stated, the employers of these Indian EB-2 candidates must have commenced the green card process (generally by filing a labor certification) more than 10 years ago for them now to be eligible to apply for the third and final step of the green card process in October 2015.

Under the new, revised procedures, Indian EB-2 candidates with a priority date of July 1, 2011 or earlier may now file an Application for Adjustment of Status, as set forth in the second chart of the October 2015 Visa Bulletin. To be clear, those who qualify under this second cut-off date will not be able to receive a green card until an immigrant visa number becomes available to them, as reflected in the first chart. However, by filing an Application for Adjustment of Status, these foreign nationals and their respective dependents will be able to file concurrent applications for interim work and travel benefits, as stated above.

This new, revised procedure is welcome news to many employer-sponsored foreign nationals, particularly those from India and China, who are most significantly affected by green card backlogs. Now that the new Visa Bulletin has been released, we expect the State Department and U.S. Citizenship and Immigration Services to answer the unresolved questions presented by this new filing opportunity, including how long it will remain available and how to submit applications.

This was a centerpiece of President Obama’s executive action on immigration which will certainly help to alleviate the hardships that employment-based immigrant visa backlogs can cause.