Changes to the Visa Bulletin for Family-Sponsored and Employment-Based Immigrant Visas

Introduction

United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS) announced on September 10, 2015, new procedures for calculating the monthly Visa Bulletin which lists when family-sponsored and employment-based immigrant visa and adjustment of status applicants may file the Form I-485, Application to Register Permanent Residence and Adjust Status. These revised procedures derive from the 2014 executive actions on immigration announced by President Obama and Department of Homeland Security (DHS) Secretary Jeh Johnson. USCIS states in its news release that the revisions will better align with the process used by DOS to set limitations for foreign nationals who seek immigrant visas at U.S. consulates and embassies abroad. Furthermore, USCIS states that the revised procedures “will enhance DOS's ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin.” I will explain what the changes are, and their effects, in this post.

What are the Changes?

DOS posts the Visa Bulletin for the next month within two weeks into the month before it will take effect.

Before the revisions to the Visa Bulletin, DOS would only list the “final action” date for different family-sponsored and employment-based preference categories. The final action date is when immigrant visas in a particular category are available. In order for an immigrant visa or adjustment of status applicant to be eligible to file the Form I-485, Application to Register Permanent Residence or Adjust Status, his or her priority date would have to be before the final action cutoff date listed for his or her country and preference category on the monthly Visa Bulletin. In most family-sponsored cases, the priority date is the date that a qualifying relative filed an immigrant petition on behalf of the applicant. In most employment-based cases, the priority date is the date on which the Department of Labor accepts a labor certification application for processing.

The revisions in the Visa Bulletin will maintain the chart with final action dates, but will add an entirely new chart that contains filing dates. Going forward, an immigrant visa applicant or adjustment of status applicant may file the Form I-485 when his or her priority date is before the filing date, rather than before the final action date. In many cases, the filing date will allow applicants file their Form I-485s significantly sooner than would be possible of DOS continued to rely on the final action date for purpose of eligibility to file the Form I-485.

The Changes in Action

DOS just recently posted the Visa Bulletin for October 2015, which is the first Visa Bulletin for which the revisions are in effect. However, let us first look at the Visa Bulletin for the current month of September 2015, the last Visa Bulletin pre-revision, in order to compare.

First, the family-sponsored preferences on the September Visa Bulletin:

Family-Sponsored Preferences — September 2015

FAMILY- SPONSORED	ALL CHARGEABILITY  AREAS EXCEPT  THOSE LISTED	CHINA -  MAINLAND BORN	INDIA	MEXICO	PHILIPPINES
F1	12/15/07	12/15/07	12/15/07	11/15/07	10/22/00
F2A	3/1/14	3/1/14	3/1/14	2/1/14	3/1/14
F2B	12/22/08	12/22/08	12/22/08	7/15/95	9/8/04
F3	⅝/04	⅝/04	⅝/04	5/22/94	9/15/93
F4	1/15/03	1/15/03	1/15/03	3/15/97	3/1/92

Second, the employment-based preferences for September 2015:

Employment-Based Preferences — September 2015

EMPLOYMENT -BASED	ALL HARGEABILITY AREAS EXCEPT THOSE LISTED	CHINA —  MAINLAND BORN	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	1/1/06	1/1/06	C	C
3rd	8/15/15	12/22/04	12/22/04	8/15/15	12/22/04
Other Workers	8/15/15	1/1/04	12/22/04	8/15/15	12/22/04
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Non-Regional Center (C5 and T5)	C	9/22/13	C	C	C
5th Regional Center (I5 and R5)	C	9/22/13	C	C	C

The charts on the September Visa Bulletin represent the same thing as the final action date charts on the October Visa Bulletin. For September, an applicant may only file the Form I-485 if his or her priority date is before the date listed for his or her preference category [note that “C” means an applicant may file regardless of his or her priority date].

Now, let us compare to the October Visa Bulletin, where the revisions have been implemented:

Dates for Filing Family-Sponsored Adjustment of Status Applications — October 2015

FAMILY -SPONSORED	ALL  CHARGEABILITY  AREAS EXCEPT  THOSE LISTED	CHINA —  MAINLAND  BORN	INDIA	MEXICO	PHILIPPINES
F1	5/1/09	5/1/09	5/1/09	7/1/95	9/1/05
F2A	3/1/15	3/1/15	3/1/15	3/1/15	3/1/15
F2B	7/1/10	7/1/10	7/1/10	1/1/96	1/1/05
F3	4/1/05	4/1/05	4/1/05	10/1/96	8/1/95
F4	2/1/04	2/1/04	2/1/04	5/1/98	1/1/93

This chart, listing filing dates, did not exist before October 2015. Let us compare it to the Final Action dates for the family-sponsored preference categories for October 2015:

Application Final Action Dates For Family-Sponsored Preference Cases — October 2015

FAMILY -SPONSORED	ALL   CHARGEABILITY AREAS EXCEPT  THOSE  LISTED	CHINA —  MAINLAND BORN	INDIA	MEXICO	PHILIPPINES
F1	1/15/08	1/15/08	1/15/08	1½2/84	6/1/01
F2A	4/15/14	4/15/14	4/15/14	3/1/14	4/15/14
F2B	1/15/09	1/15/09	1/15/09	8/1/95	10/1/04
F3	5/22/04	5/22/04	5/22/04	6/8/94	10/1/93
F4	2/8/03	2/8/03	2/8/03	3/22/97	5/1/92

Under the old rules the chart for final action dates would have controlled when an applicant could file the Form I-485. However, under the revised system, while final action cannot be taken on an application unless the priority date is before the final action date, an applicant may file the application when his or her priority date is before the filing date in the first chart. Let us use a few examples to demonstrate the effect of the new system:

A Chinese national seeking adjustment of status in the F1 preference category:

• Under the new rules, his or her priority date must be before May 1, 2009, in order to file the Form I-485.
• Under the previous rules, his or her priority date would have had to have been before January 1, 2008, in order to file the Form I-485.

An Indian national seeking adjustment of status in the F2B preference category:

• Under the new rules, his or her priority date must be before July 1, 2010, in order to file the Form I-485.
• Under the previous rules, his or her priority date would have to had have been before January 1, 2009, in order to file the Form I-485

A Mexican national seeking adjustment of status in the F3 preference category:

• Under the new rules, his or her priority date must be before October 1, 1996, in order to file the Form I-485.
• Under the previous rules, his or her priority date would have had to have been before June 8, 1994, in order to file the Form I-485.

The new rules mean that many applicants for family-based immigrant visas may file their Form I-485s sooner than would have been possible under the old rules.

The new rules apply for employment-based preference categories. The following two charts are for employment-based categories on the Visa Bulletin for October 2015.

Dates for Filing Employment-Based Adjustment of Status Applications — October 2015

EMPLOYMENT -BASED	ALL CHARGEABILITY AREAS EXCEPT HOSE LISTED	CHINA —  MAINLAND BORN	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	5/1/14	7/1/11	C	C
3rd	9/1/15	10/1/13	7/1/05	9/1/15	1/1/15
Other Workers	9/1/15	1/1/07	7/1/05	9/1/15	1/1/15
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Non-Regional Center (C5 and T5)	C	C	C	C	C
5th Regional Center (I5 and R5)	C	5/1/15	C	C	C

Application final action dates for employment-based preference cases — October 2015

EMPLOYMENT -BASED	ALL  CHARGEABILITY  AREAS EXCEPT  THOSE  LISTED	CHINA —  MAINLAND  BORN	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	1/1/12	5/1/05	C	C
3rd	8/15/15	10/11/15	4/8/04	8/15/15	1/1/07
Other Workers	8/15/15	1/1/06	⅜/04	8/15/15	1/1/07
4th	C	C	C	C	C
Certain Religious Workers	U	U	U	U	U
5th Non-Regional Center (C5 and T5)	C	10/8/15	C	C	C
5th Regional Center (I5 and R5)	U	U	U	U	U

Many applicants for employment-based immigrant visas, similarly to family-sponsored applicants, will be able to file their I-485s far sooner than would have been possible under the old rules. Please note that “U” means that no visa numbers are currently available.

Conclusion

The new Visa Bulletin procedures will allow many immigrant visa applicants to file for an immigrant visa or adjustment of status sooner than would have been possible under the old rules. This is certainly welcome news for many aliens seeking immigrant visas who will be subject to lengthy wait times. Persons applying for adjustment of status are well advised to consult with an experienced immigration attorney who will always be abreast of the latest developments on the Visa Bulletin, and may help the applicant file a complete Form I-485 at the earliest possible date under the revised guidelines.

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