Executive Summary

As part of the Immigration Accountability Executive Action issued by President Obama on November 20, 2014 (detailed here), United States Citizenship and Immigration Services ("USCIS") and the Department of State ("DOS") announced revised procedures yesterday in determining visa availability for applicants waiting to file for adjustment of status.  The new procedures are intended to more accurately estimate immigrant visa availability and provide greater predictability to nonimmigrant workers seeking permanent residency.

Revised Procedures for Determining Visa Availability

Under the revised procedures, visa availability will be determined by comparing the remaining number of visas available in the fiscal year with the following: 

  • Documentarily qualified visa applicants reported by DOS; 
  • Pending adjustment of status applications reported by USCIS; and
  • Historical drop-off rate of applicants for adjustment of status.

As a result, DOS will now post two charts per visa preference category in the monthly Visa Bulletin

The first chart sets forth "Application Final Action Dates," which reflects the priority dates for which visas may finally be issued.  The second chart lists "Dates for Filing Applications," which reflects the earliest priority dates for which adjustment of status applications may be filed. 

When USCIS determines that immigrant visas are available for the filing of additional applications to adjust status, the "Dates for Filing Applications" chart may be used.  Otherwise, the "Application Final Action Dates" chart must be used to determine when to file an adjustment of status application.  The monthly Visa Bulletin will indicate whether USCIS has determined that the "Dates for Filing Applications" chart may be used.

Practical Takeaways

Previously, applications to adjust status could only be filed when the priority date corresponding to an approved immigrant petition became current in the single visa chart.  The revised procedures will enable applicants previously limited by visa backlogs to take advantage of certain employment and travel-related benefits available to beneficiaries of pending applications to adjust status by permitting them to file such applications earlier than they would have otherwise been eligible. 

When evaluating these benefits, employers should contact immigration counsel to discuss the implications of such a strategy for applicants currently maintaining nonimmigrant status.