Creation of Two Separate Charts Containing Separate Cutoff Dates May Allow for Substantially Earlier I-485 Application for Adjustment of Status Filings

In publishing its October 2015 Visa Bulletin, the Department of State (DOS) officially introduced the creation of two separate cutoff date charts for each visa category, intended to allow applicants from oversubscribed countries and categories to possibly advance their immigrant cases even when there may not be a visa number yet available to them, i.e., their priority dates are not current. This new system 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.

“Application Final Action Dates” vs. “Dates for Filing Visa Applications”

First, the “Application Final Action Dates” chart is consistent with prior Visa Bulletins, and will still generally indicate when an individual can file his or her application for adjustment of status. The Application Final Action Dates will still show a cutoff date in each category, which represents the priority date of the first applicant who could not be reached within the numerical limits for an oversubscribed category. Only those applicants with priority dates before such a cutoff date are permitted to file their I-485 Adjustment of Status applications or attend immigrant visa interviews at consulates.

However, the new, second cutoff date chart presents a major change to U.S. immigration policy. This month, DOS introduced the “Dates for Filing Visa Applications” chart, a second chart in each visa category with separate cutoff dates from the “Application Final Action Dates” chart, as described above. The dates in this second chart may be used by USCIS to indicate when there are more immigrant visas available than there are known applicants for such visas. When this is the case, the Visa Bulletin, which is published monthly, will show cutoff dates in this second, “Dates for Filing Visa Applications” chart that are chronologically later (by a few years in many cases) than the cutoff dates provided in the first, “Application Final Action Dates” chart.

For example, in the October 2015 Visa Bulletin, the “Dates for Filing Visa Applications” chart for EB-2 (China-mainland born) shows a cutoff date of May 1, 2014. In contrast, the cutoff date in the first chart, the “Application Final Action Dates” chart, for EB-2 (China-mainland born) for October 2015 shows a much earlier cutoff date of Jan. 1, 2012.

 

What are the implications of a later cutoff date in this second chart?

A later cutoff date in this second chart means that applicants, even those whose priority dates are not current according to the “Application Final Action Dates”, are permitted to prepare and file their I-485 applications for Adjustment of Status according to the later cutoff date listed in this second, “Dates for Filing Visa Applications” chart.   Even though the I-485 application cannot be adjudicated or approved until the applicant’s priority date becomes current, the ability to file the I-485 application by itself confers major benefits. It means that these applicants and their derivatives can obtain work authorization, travel permits (advance parole), and that the alien has legal stay in the United States and does not need to maintain his or her non-immigrant status. In addition, upon an alien’s filing his or her I-485 application for Adjustment of Status, he or she has the option to port an underlying I-140 to a new position or employer, pursuant to AC21, once 180 days have passed.

 

Limitations

It is important to note the limitations of this policy change. First, the Dates for Filing Visa Applications chart will not necessarily be available every month, as the Visa Bulletin is published month-to-month and depends upon the availability of immigrant visas. In months when the visa bulletin does not permit usage of this chart, only the first chart – the Application Final Action Dates chart – can be relied upon in determining whether you are eligible to file your adjustment of status case. As such, DOS has expressly stated that unless otherwise indicated in its Visa Bulletin, individuals seeking to file applications for adjustment of status USCIS must still use the “Application Final Action Dates” charts for determining when they can file such applications.

Second, the ability to “file” your I-485 Application for Adjustment of status does not mean that you will be issued a green card more quickly. Your priority date must become current before USCIS adjudicates and approves your application.

Lastly, this new policy will likely be of less significance to foreign national applicants not physically present in the U.S. because the actual immigrant visas in their cases will continue to be approvable based on the “Application Final Action Date” cutoff dates. As such, it is likely that only foreign nationals who are physically in the United States will stand to benefit significantly from this policy change.

 

Favorable for Employment-Based, China and India-born Nationality Categories

For EB-2 China-mainland born, the cutoff date in the first “Application Final Action Dates” chart is set to Jan. 1, 2012. In the second “Dates for Filing Visa Applications chart,” however, EB-2 China-mainland born aliens can take advantage of the more favorable cutoff date of May 1, 2014. This means that an EB-2 beneficiary born in mainland China with a priority date of April 30, 2014 or earlier may be eligible to file for adjustment of status on October 1, 2015. As mentioned, this applicant’s I-485 application for Adjustment of Status may not be adjudicated for many years, but he or she can at least retain the tremendous benefits of filing the I-485 application, including his or her ability to obtain work authorization and travel permits (advance parole). Additionally, upon filing the AOS application, the alien would not need to maintain his or her non-immigrant status.

This same principle applies for EB-3 China-mainland born, as well as EB-2 and EB-3 India born categories. Without this new policy, these categories of aliens must traditionally wait years before being able to file their AOS applications due to major visa backlog.

Impact on the EB-5 Category

For EB-5 categories, the cutoff date in the second “Dates for Filing Visa Applications” chart is also much more favorable in comparison to the first chart. In the October 2015 Visa Bulletin, the cutoff date in the second chart for the China-born EB-5 category is May 1, 2015, whereas in the first chart, the cutoff date is set back to October 8, 2013. As such, this new immigration policy change also positively impacts the EB-5 category.

 

Impact on Family-Based Categories

The “Dates for Filing Visa Applications” chart also provides more favorable cutoff dates for family-based categories. Since most of these cases must be filed for consular processing due to the qualifying family member/applicant’s physical presence outside the U.S., however, these cases must generally be filed with consular processing. As mentioned, consular cases are not expected to be significantly impacted by this new policy, as the cutoff dates for those cases are still dictated by Application Final Action Dates.

 

In closing, this recently announced policy will likely and dramatically reduce wait times for many individuals waiting to apply to adjust their status, particularly if they are waiting in the traditionally backlogged categories. While it may still take years to obtain lawful permanent resident status in the United States (i.e., a green card), these individuals can at least take advantage of the tangible and valuable benefits of filing AOS applications at an earlier date. Among such benefits of filing the I-485 application include the absence of anxiety and worry from having to maintain one’s non-immigrant status. As such, the emotional and financial cost savings associated with this new immigration policy are significant.