Today the U.S. Department of State (DOS) published its October Visa Bulletin, which now includes a new category of dates for filing of employment-based visa applications to allow foreign nationals subject to priority date backlogs to submit their green card applications before the priority date becomes current. 

The early filing option for the green card will permit applicants to obtain interim benefits, including work authorization and travel documents, and allows them to accept a position with a new employer at an earlier stage in the process.  

In the employment-based visa categories, the new filing option will provide the most significant benefit to applicants born in China and India, who are subject to the longest priority date backlogs and will now be permitted to file a green card application up to six years earlier. 

**Sidley will be hosting a webinar on this topic for employer HR and legal staff at 1:00 p.m. ET/12:00 p.m. CT on Friday, September 11. If you would like to join us, please email chevents@sidley.com for login details.**  

What is the Visa Bulletin?  

The Visa Bulletin is a monthly DOS publication that serves as a reference for foreign nationals who are in the employment-based green card process. The Visa Bulletin provides information regarding the categories of employment-based green card filings in which demand has exceeded the legal allocations for the fiscal year and are therefore subject to priority date backlogs. The Visa Bulletin is updated each month according to visa availability. 
 
The October Visa Bulletin is available here as of September 9, 2015.
 
What is the significant change in the October Visa Bulletin?
 

For the first time, the October Visa Bulletin allows individuals subject to priority date backlogs to file their green card applications under a new “filing date” and receive the related benefits before their priority date becomes current. 

In the October Visa Bulletin, the DOS now provides two separate charts of cut-off dates for green card applicants: 

  • the “final action date,” which corresponds to the long-standing Visa Bulletin priority date chart and 
  • a new “filing date,” under which applicants can file an application for a green card (also called an application for adjustment of status).  

The new filing date only provides an earlier opportunity to submit the adjustment of status application, but does not accelerate the timeframe in which the green card application is actually issued and approved.

What are the benefits of the early filing provision?

The benefits of the new filing provision include:

 

  • Additional work authorization and travel documents: An individual who submits an application for adjustment of status application can concurrently request an Employment Authorization Document (EAD) and advance parole (AP) travel document, which provides the applicant with additional flexibility in employment and international travel. 
  • Work authorization for spouses: Family members can submit an application for adjustment of status and request EAD and AP documents for themselves.
  • Increased worker mobility to new employment: Once the adjustment of status application has been pending for six months, the individual is no longer tied to the sponsoring employer and becomes mobile in the labor market.  After six months, most adjustment of status applicants can change employers as long as the new position is “same or similar” to the position for which the green card application was filed. 

For example, in the October Visa Bulletin, Indian-born applicants in the Employment Second Preference Category (EB-2 India) have a final action date of May 1, 2005 and a filing date of July 1, 2011.  This means that an individual born in India whose EB-2 PERM case was originally filed on September 1, 2005 – who is not “current” under the final action chart – may now file an adjustment of status application.  The adjustment of status application will remain pending until it becomes current under the dates in the final action chart. 

When can applicants file for adjustment of status under the new “cut off” dates?

Applicants who are eligible to file for adjustment of status based on the new filing date in the October Visa Bulletin may file their applications beginning on October 1, 2015. 

Why did DOS implement this change?

This change is a component of the Administration’s efforts to modernize the immigrant visa system announced in the President’s Immigration Accountability Executive Actions in November 2014. For more information about this initiative, click here.