A new category of “filing” cutoff dates has been introduced to allow for earlier filing of adjustment of status applications and immigrant visa applications.

The US Department of State (DOS) has released its October 2015 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status and consular immigrant visa application filings and approvals.

WHAT DOES THE OCTOBER 2015 VISA BULLETIN SAY?

As predicted in our recent alert on this subject, the October Visa Bulletin now includes both a series of “filing” cutoff dates and a series of “final action” (or approval) cutoff dates. The former indicates when intending immigrants may file their applications for adjustment of status or immigrant visa; the latter indicates when an adjustment of status application or immigrant visa application may be approved and permanent residence granted. The reengineered Visa Bulletin is clearly a response to US President Barack Obama’s request that the systems for determining immigrant visa availability be more rational and predictable.

The October Visa Bulletin sets out new filing and approval cutoff date charts for both the employment-based (EB) and the family-based (FB) immigrant categories. In this Immigration Alert, we will discuss only the new cutoff date scheme applicable to the EB category.

Employment-Based “Filing” Cutoff Dates

The following chart may be used in October 2015 to determine when an adjustment of status or immigrant visa application may be filed. For such applications to be filed, an applicant’s priority date must be before the relevant filing cutoff date. According to this chart, an Indian national in the EB-2 category with a priority date of June 30, 2011 or earlier would be able to file an adjustment of status or an immigrant visa application. Similarly, a Chinese national in the EB-3 category with a priority date of September 30, 2013 or earlier would also be able to file an adjustment of status or immigrant visa application. The relevant filing cutoff dates for all EB categories and countries of chargeability are as follows:

The introduction of new filing cutoff dates is a major benefit for persons chargeable to China and India, the traditionally backlogged countries. Such persons previously faced delays of several years before becoming eligible to file adjustment of status or immigrant visa applications. Filing an adjustment of status application will allow an applicant and his or her dependents to receive all the ancillary benefits of such an application, including employment authorization documents (EADs), Advance Parole travel authorization, and immigrant petition portability, which allows a move to a new employer or position without affecting the underlying green card process.

Employment-Based “Final Action” Cutoff Dates

The following chart sets out the cutoff dates that regulate when immigrant visa applications or adjustment of status applications may be approved. For such applications to be approved and permanent residence granted, an applicant’s priority date must be before the relevant approval cutoff date.

UNRESOLVED ISSUES

It had been expected that the US Citizenship and Immigration Services (USCIS) would require that approval of an I-140 immigrant petition be obtained before an adjustment of status application could be filed under the “filing” cutoff date system. The USCIS commentary on the new immigrant visa availability makes no mention of such a requirement, however. In addition, it is not clear if applicants for a three-year H-1B extension under section 104 (c) of the American Competitiveness in the 21st Century Act, which requires that an immigrant visa be unavailable because of “per country limitations,” will be able to continue to seek such extensions if their priority dates are before the relevant filing cutoff dates.

HOW THIS AFFECTS YOU

Given the large disparity between the cutoff dates in the September Visa Bulletin and the October filing cutoff dates (in the India EB-2 category, a forward movement of five and a half years), a large number of previously backlogged foreign nationals will become newly eligible to file adjustment of status or immigrant visa applications on October 1. A heavy volume of adjustment of status and immigrant visa application filings in October may result in the significant retrogression of filing cutoff dates in the November Visa Bulletin. We therefore encourage all eligible applicants to file adjustment of status applications during the October window.

To see the October 2015 Visa Bulletin in its entirety, please visit the DOS Website.