On Aug. 9, 2016, following the release of the September 2016 Visa Bulletin, U.S. Citizenship & Immigration Service (USCIS) issued a statement explaining when to file Adjustment of Status applications for those seeking to become U.S. permanent residents under family-sponsored or employment-based preference immigrant visa categories.

By way of background, individuals who are present in the U.S. are eligible to file a Form I-485, Application to Adjust Status in connection with a family-sponsored or employment-based immigrant visa petition, as per the monthly Visa Bulletin published by the Department of State (DOS). The monthly Visa Bulletin contains information on current immigrant visa availability, specifically when statutorily limited visas will become available based on an individual’s priority date. The priority date is usually the date on which the immigrant visa petition is filed with USCIS; for immigrant visa petitions in which a labor certification is required, the priority date is the date the labor certification application is submitted to the Department of Labor. When immigrant visas are currently available based on preference category, country of chargeability and priority date, a prospective immigrant can file an adjustment of status application in connection with an underlying family-sponsored or employment-based immigrant petition.

In July 2015, USCIS and DOS revised the procedures for determining immigrant visa availability for individuals waiting to file adjustment of status applications in order to more accurately predict overall immigrant visa availability and to ensure annual issuance of the maximum number of immigrant visas. Per the revised process, the Visa Bulletin contains two charts for family-sponsored and employment-based preference categories: Application Final Action Dates (i.e., when visas may be issued) and Dates for Filing (i.e., earliest dates when adjustment of status applications may be filed). If USCIS determines that there are immigrant visas available, individuals can file adjustment of status applications pursuant to the Dates for Filing charts. If not, the Application Final Action Dates charts must be used to determine when a prospective immigrant is eligible to file an adjustment of status application with USCIS. To determine visa availability, USCIS compares the number of immigrant visas available for the remainder of the fiscal year with data including the qualified visa applications reported by DOS, the number of pending adjustment of status applications reported by USCIS, and prior drop-off rates for adjustment of status applicants.

For September 2016, USCIS indicates that the charts for Application Final Action Dates must be used for both family-sponsored and employment-based adjustment of status filings, rather than the Dates for Filing charts. Please see below for the Application Final Action Dates for both family-sponsored and employment-based preference filings:

Application Final Action Dates for Family-Sponsored Preference Cases

Application Final Action Dates for Employment-Based Preference Cases

It is possible that USCIS may allow for filing of adjustment of status applications based on the Dates for Filing charts when a new supply of immigrant visa numbers becomes available at the start of the government fiscal year in October 2017. If this does occur, we recommend contacting your immigration counsel immediately and filing any eligible adjustment of status applications as soon as possible, in order to take advantage of the opportunity for earlier filing of adjustment of status applications for many foreign nationals.