On September 9, 2015, USCIS, in coordination with Department of State (DOS), changed the process for determining visa availability for applicants seeking to apply for adjustment of status. The new process, effective in the October 2015 Visa Bulletin, will allow for earlier filing of adjustment of status applications for many foreign nationals. For some people this will result in the ability to file adjustment of status applications years earlier than would have been possible under the old system. For people who are in the United States stuck in the long visa backlogs (chiefly natives of India, China, and the Philippines) this change means they will be able to apply for adjustment of status and receive employment authorization and travel documents months or years earlier than previously anticipated.

Specifics of New Visa Bulletin Process

Under the old system, the DOS’s Visa Bulletin would provide a chart listing the current “priority dates” for a given month, and those dates would regulate both (1) when foreign nationals, based on “priority date,” were eligible to submit to USCIS an application for adjustment of status and (2) when adjustment of status applications could be approved by USCIS, resulting in issuance of permanent resident status. Under the new system the eligibility dates for filing an adjustment of status application with USCIS will be treated separately from the eligibility date for a final action by USCIS.  The Visa Bulletin will now have two different charts:

• “Dates for Filing Applications” (earliest dates when applicants may be able to apply); and

• “Application Final Action Dates” (dates when visas may finally be issued).

The October Visa Bulletin appears as follows:

Dates for Filing Applications Chart

Application Final Action Dates Chart

As you can see, the “Dates for Filing Applications” chart can be months/years ahead of the “Application Final Action Dates” chart. Most importantly, EB-2 India is 6 years faster under the Dates for Filing Applications Chart (July 1, 2011) than under the Application Final Action Dates Chart (May 1, 2005). Similarly, the Dates for Filing Applications Chart for EB-2 and EB-3 China is 2 years faster than the Application Final Action Dates Chart and EB-3 Philippines is 7 years faster under the Dates for Filing Applications Chart than under the Application Final Action Dates Chart.

The Visa Bulletin is updated each month. There is no way to determine exactly how many people may be affected by these changes or how long the rapid advancement in ability to file adjustment of status application will last. Therefore, we recommend taking immediate action and filing all eligible adjustment of status applications before the end of October 2015.

Next steps for employers

Employers should take the following steps in light of this change in the process for determining visa availability:

1. 1. Identify all current employees who may be eligible to apply for adjustment of status in October 2015.

2. 2. For employees who (a) have already been sponsored by the employer for immigrant visas (Form  I-140) and (b) who remain in the sponsored position, immediately prepare adjustment of status applications.

3. Some employees will have priority dates eligible for adjustment of status in October 2015 but are no longer in the sponsored position, either because they have changed roles with the sponsoring employer or because they are no longer employed by the sponsoring employer. These individuals cannot apply for adjustment of status. Employers must prepared to address this issue and understand the potential need to immediately initiate new green card processes for the individuals, as these individuals will want to file adjustment of status as soon as possible.