USCIS Announces New Process for Determining Eligibility to File for Adjustment of Status in Backlogged Preference Categories
On September 9, 2015, U.S. Citizenship and Immigration Services (USCIS) announced a major overhaul of its system for determining adjustment of status eligibility for individuals with family-based or employment-based petitions in backlogged preference categories. This revised process will enhance the Department of State’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. This will help to ensure that the maximum number of immigrant visas is issued annually as intended by Congress and to minimize month-to-month fluctuations in Visa Bulletin final action dates.
The Visa Bulletin is a government publication that provides a monthly updated chart listing the cut-off dates for permanent residence applications that can be filed by individuals with pending or approved family-based and employment-based "preference" petitions (petitions subject to the immigration quota system). Demand for visa numbers by applicants with a variety of priority dates can fluctuate from one month to another, with an inevitable impact on cut-off dates. Such fluctuations can cause cut-off date movement to slow, stop or even retrogress. Therefore, certain categories are significantly backlogged, and individuals must wait for months and even years before they can file for or receive permanent residence.
Under the revised process announced by USCIS, the Visa Bulletin will be issued in a new format. It will provide two charts each for the family-based and employment-based categories. One chart will represent "Application Final Action Dates" (dates when visas may finally be issued, and the adjustment of status may be approved) and "Dates for Filing Applications" (earliest dates when applicants may apply and file for adjustment of status). The new Visa Bulletin format will, therefore, allow individuals to determine their eligibility to file for adjustment of status, as well as the government’s ability to grant their adjustment of status. Previously, the Visa Bulletin only provided the final action dates for each category, and individuals could not file for adjustment of status until their priority date had been reached and their cases could be approved.
The Visa Bulletin for October 2015 is already in the new format and shows a very significant difference between the two dates. In many categories, the "Dates for Filing Applications" are far in advance of the "Application Final Action Dates." This means that certain individuals can file their adjustment of status applications months or even years before their applications can actually be approved and permanent residence granted. The ability to file adjustment of status so early provides individuals and their dependent family members with eligibility for Employment Authorization Documents (EADs) during the pendency of the adjustment of status case, until the priority date has been reached and the case can actually be approved.
The ability to file adjustment of status application early may reduce the burden on employers to continue to file non-immigrant visa extensions for workers who are waiting for their employment-based applications to be "ripe" for approval. It would allow such workers, their spouses and their dependent children to obtain work-authorization and become lawfully employed without the need for non-immigrant work visa applications. The new process would also provide flexibility to employees who wish to transfer to new employers. Beneficiaries of approved employment-based petitions are allowed to continue with their employment-based I-140 applications through a new employer as long as an application for adjustment of status has been pending for at least 180 days and the new employment is in the same or similar occupational classification.
Individuals with pending or approved petitions who are subject to annual immigrant number limitations should monitor the Visa Bulletin closely. Such individuals should closely examine the new procedures to determine if they may be affected. We recommend that you contact experienced immigration counsel to assist with this determination.