On Wednesday, September 9, 2015, United States Citizenship and Immigration Services (USCIS), in coordination with the Department of State (DOS), announced that it was "revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status."
Until now, an application for adjustment of status could only be filed in a preference-based case if the priority date (date on the waiting list) for the case was earlier than the cut-off date for issuing a visa in that particular category. The new Visa Bulletin creates a new, more generous cut-off date to allow applicants to file applications for adjustment of status earlier. There has been recognition that filing an application and putting it in the pipeline does not require the immediate availability of a visa, and applicants should have the opportunity to file earlier. Being able to file an adjustment of status application earlier is important to foreign nationals because they can secure employment authorization and travel documents while they await final action on their application. This change affords them greater flexibility and job mobility while stuck in long visa backlogs.
The most dramatic example of this, in the Visa Bulletin for October of 2015, is in the employment-based second preference category for India, where the "Final Action" cut-off date is May 1, 2005, but any applicant who has a priority date earlier than July1, 2011, may file an application!
As USCIS announced, the process of determining cut-off dates is very complex and involves comparing the number of visas available for the remainder of the fiscal year to:
- Documentarily qualified visa applicants reported by DOS;
- Pending adjustment of status applications reported by USCIS; and
- Historical drop-off rate (for example, denials, withdrawals, abandonments).
As stakeholders have no idea what the cut-off dates will be after October, there undoubtedly will be a mad rush to get applications filed during October of 2015 for those who are eligible as a result of the new, more generous cut-off dates.
USCIS provides a chart explaining the process of determining one's priority date and further information on this program which can be found here.