As the government’s Fiscal Year 2022 (“FY 2022) draws to a close this coming September 30th, US Citizenship and Immigration Services (“USCIS”) has assured the public it is “dedicated to ensuring we use as many available employment-based visas as possible in FY 2022.” This is good news as approximately 66,500 employment-based green cards were not used in FY 2021.
Read moreUSCIS Urges Eligible Adjustment of Status Applicants to Interfile
After the release of the March 2022 Adjustment of Status Filing Charts from the Visa Bulletin, US Citizenship and Immigration Services (“USCIS”) issued an alert urging eligible adjustment of status (“AOS”) applicants to consider filing a request to transfer the underlying basis of their adjustment of status application. According to USCIS, eligible applicants should request to transfer to “the first (priority workers) or second (noncitizens in professions with advanced degrees or with exceptional ability) employment-based preference categories, because there is an exceptionally high number of employment-based immigrant visas available in these categories during this fiscal year (October 2021 through September 2022).” USCIS noted that the overall number of visas available for the first and second preference employment-based categories is almost “twice as high as usual, because that limit includes all unused family-sponsored visa numbers from fiscal year 2021, which was approximately 140,000.”
Read morePriority Dates Q&A
Once foreign nationals decide they want to stay in the United States permanently and start talking to an immigration attorney or researching the process themselves, there is a pretty good chance the term “priority date” will come up. What this term means and why it is so important to figuring out the timing involved in a Green Card case can be confusing. There are often many questions surrounding how one obtains a priority date and all the timing issues that follow. This post aims to explain how the process works, although many people may prefer not to know how the sausage is made (if you will). Tracking the backlog of cases can be painfully frustrating—especially if a foreign national’s visa category is one that is excessively backlogged. But for those who wish to know the reason behind the delays, here are some of the most frequently asked questions.
Read moreUSCIS Proposes Rule to Improve Employment-Based Nonimmigrant and Immigrant Visa Programs
The Department of Homeland Security (DHS) and US Citizenship & Immigration Services (USCIS) are now seeking public comments on a proposed rule to “modernize and improve certain aspects of employment-based nonimmigrant and immigrant visa programs.” Coming out of President Obama’s 2014 executive actions, these changes could potentially affect a large number of skilled immigrant workers as well as many applying for an employment authorization document (EAD). Specifically, the new rule also proposes to “better enable US employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).”
The rule, published in the Federal Register as Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, proposes many key changes that could have a significant impact on the careers and lives of certain foreign nationals. Among the highlights, USCIS proposes to:
- Discontinue the ninety-day adjudication time limit for the employment authorization document (EAD) application process and instead provide for automatic extensions of timely-filed I-765 applications assuming certain conditions are met;
- Allow a ten-day grace period now available to H-1B workers at the beginning and end of the authorized stay to other non-immigrant categories including E-1, E-2, E-3, L-1, and TN classifications;
- Establish a “one-time” grace period (no working allowed) for up to sixty days for certain highly-skilled nonimmigrant workers under E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN status whenever their employment ends to pursue new employment;
- Allow US employers to employ and retain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions (i.e., I-140 petitions) by allowing these workers to accept promotions, make position changes with current employers, switch employers, and pursue other employment opportunities;
- Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval;
- Explain when applicants may retain their priority date to use when applying for adjustment of status (AOS) to lawful permanent residence, including when USCIS has revoked the I-140 approval because of the employer's business termination or I-140 withdrawal;
- Allow certain highly-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 status to apply for one year of unrestricted employment authorization if they are the beneficiaries of an approved I-140 petition, are unable to adjust status due to visa unavailability, and can provide evidence that compelling circumstances exists which justify issuing an employment authorization document.
These proposed changes wouldn’t take effect until after the comments period ends February 29, 2016, and until after the final rule is published. Individuals should follow the instructions in the notice to submit comments.
OPINION: Visa Bulletin Debacle
Those of us practicing immigration law in the summer of 2007 experienced something that we thought would never happen again. The US State Department (DOS) released a Visa Bulletin that reported every employment-based preference category as “current.” This meant that everyone with an approved labor certification, no matter the prior backlog of priority dates, could file their adjustment of status (i.e. “Green Card”) applications with US Citizenship & Immigration Services (USCIS). Clients and attorneys cheered for joy and started preparing the paperwork. Clients who were abroad when the announcement was made flew back to the US (since an applicant has to be physically present in the US when applying for the adjustment). Clients got medical exams, paid for translations, paid attorneys, and everyone worked overtime to put together these numerous and extensive applications. And then…the State Department took the Visa Bulletin back!
Read moreUSCIS Announces Revised Procedures for Determining Visa Availability for Certain Applicants Waiting to File for Adjustment of Status
US Citizenship & Immigration Services (USCIS) along with the Department of State (DOS) is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revision in the process means that certain people will be eligible to file their adjustment of status applications (and the interim benefits that go along with that filing including work cards and travel permission) earlier than the date their Green Card priority date becomes current. USCIS states that the "revised process will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad."
Implementing President Obama's November 2014 executive actions on immigration—as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century—the revised process will enable foreign nationals (and their spouses) to obtain work cards and travel permission faster than they might have, and enable DOS to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the monthly Visa Bulletin. All this, according to USCIS, will "help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates."
What Is the Visa Bulletin?
Every month the DOS publishes the current immigrant visa availability in a monthly Visa Bulletin. This Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date for both the family-based and employment-based preference categories. The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS; or, if a labor certification was required to be filed with the applicant’s immigrant visa petition, the priority date is when the labor certification application was accepted for processing by the Department of Labor. Availability of an immigrant visa means eligible applicants are able to take the final steps in the process of becoming US permanent residents—namely, applying for an immigrant visa at a US Embassy or Consulate abroad or else applying for an adjustment of status to permanent residency if in the US.
What is Changing in the Visa Bulletin?
Effective in the October Visa Bulletin, there are now two charts per visa preference category:
- Application Final Action Dates (dates when immigrant visas may finally be issued); and
- Dates for Filing Applications (earliest dates when applicants may be able to apply for adjustment of status).
Applicants can use the charts to determine when they are eligible to file their Form I-485, Application to Register Permanent Residence or Adjust Status. USCIS states that to determine whether additional visas are available they will compare the number of visas available for the remainder of the fiscal year with:
- Documentarily qualified visa applicants;
- Pending adjustment of status applications; and
- Historical drop-off rate, including denials, withdrawals, and abandonments.
Who is Affected?
The October Visa Bulletin introduces the new adjustment filing date chart and allows many people who have been waiting for their Green Card priority date to become current to now file for the adjustment of status. Significantly the "Dates for Filing" for China-born and Indian-born nationals in the EB-2 category is May 1, 2014 and July 1, 2011, respectively, which is years ahead of these Green Card priority dates (January 1, 2012 and May 1, 2005, respectively). The changes also affect family-based visa applicants. Therefore, someone who has been waiting for a priority date for their Green Card may be able to apply for adjustment of status earlier. They will not get their Green Card unless the Green Card priority date becomes current but they will enjoy the benefits of being an adjustment applicant, namely the interim work card and travel permission that they can keep while their adjustment of status application remains pending.
For those eligible to apply, USCIS has more information about filing the adjustment of status. One of the most sought after benefits and advantages to filing adjustment of status is that applicants can concurrently file employment authorization and travel permission applications. An experienced immigration attorney will be able to advise if foreign nationals are eligible to file for adjustment of status and what the next steps would involve.
UPDATE SEPTEMBER 25, 2015: The Department of State (DOS) has today unexpectedly published an updated and revised October 2015 Visa Bulletin. This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and the revised dates affect priority and filing dates for certain nationalities. US Citizenship & Immigration Services explains:
Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process. The Dates for Filing Applications sections on pages 4 and 6, which have been adjusted, have been identified in bold type and highlighted.
Applicants are advised to use the revised chart when determining eligibility to file adjustment of status applications. Applicants are advised to consult with qualified immigration attorneys for questions about eligibility and the revised visa bulletin. We will post more information as we receive it.
UPDATE SEPTEMBER 8, 2015: Immigrants are protesting the amendments to the October Visa Bulletin by sending flowers to the Department of Homeland Security (DHS). Inspired by the nonviolent protest methods of Mahatma Gandhi, immigrants are sending bouquets and letters of protest decrying the bulletin reversal that affected thousands of excited applicants who were preparing to file their adjustment of status applications. Many applicants spent between $2,000 to $5,000 to prepare for the applications, not to mention countless hours and often days tracking down often difficult to obtain paperwork.
"We started making plans," Sridhar Katta, a mechanical engineer and M.B.A. who lives in Seattle with his wife and sixteen-year-old twin boys, said to CNN. "All our hopes were dashed within a matter of days." So far the Department of Homeland Security has only issued vague comments about the sudden turn-around. One DHS spokeswoman told CNN: "Further analysis of a recently published Visa Bulletin, intended to improve the issuance of green cards, showed that some of the new filing dates in that bulletin did not accurately reflect visa availability." Whatever happens, one can only hope that the sweet smell of the flowers will remove the sour taste left in our mouths.
UPDATE SEPTEMBER 22, 2015: In the latest Kafka-esq development in the ongoing saga stemming from the October 2015 Visa Bulletin updates and revisions that have affected thousands of immigrants, USCIS announced that beginning with the November 2015 DOS Visa Bulletin, if USCIS "determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas" they will state on the USCIS website that applicants may use the "Dates for Filing Visa Applications" chart. Otherwise, immigrants will need to use the the "Application Final Action Date" to determine when to file their adjustment of status applications. USCIS states that they anticipate making this determination each month and posting the relevant chart on their website within one week of visa bulletin publication.