As part of President Obama’s planned executive action on immigration, which was announced on November 20, 2014, the U.S. Department of State (“DOS”) has unveiled a new process for determining immigrant visa availability. This change, which goes into effect October 1, 2015, impacts when foreign nationals with an approved Form I-140, Immigrant Visa Petition, may file a Form I-485, Application to Register Permanent Residence or Adjust Status, Application (“Green Card Application”) with U.S. Citizenship and Immigration Services (“USCIS”).

Currently, the DOS publishes one monthly Visa Bulletin that determines when foreign nationals may file and when USCIS may approve their Green Card Applications. The Visa Bulletin is divided into multiple employment-based (“EB”) preference categories and sub-categories based on a foreign national’s country of birth. When the foreign national’s priority date – or the date their PERM Labor Certification or I-140 petition was filed with the U.S. Department of Labor and/or USCIS – is “current”, meaning that the foreign national’s priority date falls before the cut-off date listed on the Visa Bulletin for their EB preference category and sub-category, the foreign national can file their Green Card Application with USCIS and USCIS can approve such application.

The DOS will now issue two Visa Bulletins monthly – one will control when USCIS can approve the I-485 application (“Approval Bulletin”), and one will control when a foreign national can file a Green Card Application with USCIS (“Filing Bulletin.”) A foreign national may file a Green Card Application when their priority date is current on the Filing Bulletin. While USCIS will not approve the Green Card Application until the foreign national’s priority date is current on the Approval Bulletin, he or she will obtain the benefits of having a pending I-485 application while waiting for their priority date to become current on the Approval Bulletin. These benefits include employment and travel authorization as well as increased job portability.

This modification to the Visa Bulletin may significantly impact employers of foreign nationals who previously faced long delays before being able to file Green Card Applications on behalf of their employees. The new two Visa Bulletin system will become effective October 1. Employers should plan accordingly in advance of this implementation date to ensure that eligible employees are able to file Green Card Applications. A link to the new Visa Bulletins and additional information can be found at: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html.