On September 9, 2015, the United States Citizenship and Immigration Services (USCIS), in coordination with the Department of State (DOS),announced and issued a notice regarding changes to the Visa Bulletin that would permit eligible individuals to file family-based or employment-based Applications to Register Permanent Residency or Adjust Status (Form I-485) earlier than was permitted under the previous process. Starting with the October 2015 Visa Bulletin, DOS will now include two charts displaying “final action dates” and “filing application dates.” This change will permit individuals present in the United States who are in the permanent residence (green card) process but waiting in long quota-related backlogs to file their applications sooner than before and receive employment authorization while they wait for final action on their cases. However, we note that the actual wait time for a green card to be issued has not changed, as the final action dates are still driven by very long quota-related delays.
Nevertheless, the new policy allows certain people to file for adjustment of status much earlier than under the prior regime. Although DOS published an initial version of the October 2015 bulletin on September 9, 2015 with very favorable (early) cut-off dates especially for Chinese and Indian nationals in second and third employment-based preference categories (EB-2 and EB-3, respectively), DOS soon reversed its position and subsequently issued a revised October 2015 Visa Bulletinon September 25, 2015 that supersedes the bulletin released on September 9. The revised bulletin for October rolled back significantly the “filing application” cutoff dates for some categories, including EB-2 and EB-3 for China and India. As a result, a large number of people who thought, upon publication on September 9 of the original October Visa Bulletin, that they would be able to proceed with their adjustment of status filings during October, now have been made ineligible to proceed with such filing under the revised version of the October Visa Bulletin.Department of Homeland Security (DHS) will rely on the revised Visa Bulletin in determining an individual’s eligibility to file an application for adjustment of status during the month of October.
DOS publishes immigrant visa availability information on a monthly Visa Bulletin that indicates when immigrant visas that are statutorily limited in number become available for issuance. In November 2014, the Secretary of Homeland Security directed USCIS to work with DOS to improve the Visa Bulletin system for determining immigrant visa availability to applicants as part of the Obama Administration’s initiative to modernize and streamline the immigration system. Previously, applications for adjustment of status in preference-based cases could only be filed if the applicant’s priority date (which is the date a relative or employer filed an immigrant petition for the applicant or the date the Department of Labor accepted a labor certification application, ETA 9089, on behalf of the applicant) was earlier than the cut-off date for issuing an immigrant visa in the applicable category.
Changes to the Visa Bulletin and Impacts
The Visa Bulletin will now employ a bifurcated system, displaying two tables with two sets of cut-off dates. These dates are the “final action dates” (dates when an immigrant visa may be issued) and “filing application dates” (the earliest dates when applicants may be able to submit an application to adjust status). Based on their preference category and country of birth, applicants can use the new chart governing “filing application dates” to determine when they may file an application to adjust status. If the date on the new chart is listed as “current” or the applicant’s priority date is earlier than the filing date listed on the chart, an eligible individual may file their application. This system creates a new cut-off date that is more generous than the old one, permitting applicants to get an application in the pipeline earlier.
Applicants and their dependent spouses can now receive temporary work authorization sooner by filing for adjustment of status at an earlier date than was previously allowed. In addition, the revised Visa Bulletin is expected to more accurately predict the demand for immigrant visas. We note that applicants are still subject to the final action date, which has not changed, and thus, applicants will not receive their green cards faster than under the old system.
We also note that DOS revised the October 2015 Visa Bulletin on September 25, 2015, so applicants must rely on this revised bulletin rather than the original bulletin published on September 9, 2015. “Filing application dates” in several visa categories were rolled back, specifically in the EB-2 China, EB-2 India, EB-3 Philippines, FB-1 Mexico, and FB-3 Mexico categories. Therefore, some applicants who were eligible to file for adjustment of status in October under the original bulletin may no longer be eligible under the revised bulletin but should continue to monitor developments and movement of cut-off dates in subsequent Visa Bulletins that will be published in coming months.
Thousands of Foreign STEM Students with 17-month OPT Extension Face Possible Trouble With Work Authorization
On August 12, 2015, the District Court for the District of Columbia issued a decision vacating a DHS rule that extends the optional practical training (OPT) period for eligible science, technology, engineering, and mathematics (STEM) students after graduation. The court held in Washington Alliance of Technology Workers v. U.S. DHS that the DHS rule was invalid because it was promulgated without a proper notice and comment period. The rule was issued by DHS in 2008 and provided an additional 17-month work authorization period for graduated STEM students on F-1 visas. However, the order has been stayed for six months until February 12, 2016, which is the deadline for DHS to issue a new regulation with the proper notice and comment period.
In April 2008, DHS issued an interim final rule with request for comments to extend the OPT period by 17 months for students on an F-1 nonimmigrant visa with a qualifying degree in a STEM field. The extension provided eligible students with a maximum of 29 months of work authorization. DHS was particularly concerned about OPT students being unable to obtain H-1B visas within the existing 12-month OPT period, due to the limited number of H-1B visas available each year. DHS issued the 17-month extension rule without notice and public comment, citing a need to “avoid a loss of skilled students” through the next round of H-1B visa filings.
Court Ruling and Implications
Plaintiffs in the Wash. Alliance of Tech. Workers case filed suit in March of 2014, alleging that the OPT program exceeded DHS’s statutory authority. In its August 2015 ruling, the court vacated the 17-month OPT extension because DHS failed to provide the notice and comment period and did not properly support its claim that the extension was urgently needed. However, the court recognized that immediately vacating the rule would cause disruption and difficulties for thousands of F-1 OPT STEM students with work authorizations as well as their U.S. employers. Therefore, the court stayed the vacatur until February 12, 2016, so eligible students may still rely on the 17-month extension until that time. DHS must issue a new regulation with a notice and comment period by February 12, 2016, or work authorizations for STEM students under the 17-month OPT extension will no longer be valid as of February 12, 2016.
Given the potential consequences of failure to act by the deadline, it is likely that DHS will act to issue a new rule in the next month or so. However, nothing is certain at this time, so F-1 OPT STEM students and their employers should be prepared for the possible expiration of extended work authorizations in February 2016.
Do You Feel Lucky? - Registration Opens for 2017 Diversity Immigrant Visa Lottery
Online registration for the State Department’s annual Diversity Immigrant Visa Program opened on October 1, 2015, and will close on November 3, 2015. Eligible individuals may sign up to enter the green card lottery during this time, and lottery results based on a randomized computer drawing will be announced starting May 3, 2016. Selected individuals will have the opportunity to apply for a green card in Fiscal Year 2017 (starting October 1, 2016). For Fiscal Year 2017, 50,000 Diversity Visas will be made available.
The congressionally mandated Diversity Immigrant Visa Program provides a limited number of visas for “diversity immigrants” who are from countries with historically low rates of immigration (less than 50,000 immigrants in the previous five years) to the United States. Diversity visas are distributed among six geographic regions, and no one country may receive more than seven percent of available diversity visas in a given year.
Diversity Visa lottery applicants must meet certain eligibility requirements. Natives of eligible countries may enter, as well as spouses of individuals native to an eligible country and individuals born to a parent native to an eligible country. Lottery applicants must also have at least a high school education or equivalent, or two years of work experience in the past five years in an occupation requiring at least two years of training or experience to perform.
Procedures for Entering the Lottery
The Diversity Immigrant Visa Program for 2017 opened for entries at noon Eastern Daylight Time on October 1, 2015, and will close at noon Eastern Standard Time on November 3, 2015. Natives of eligible countries must apply for the program through the Diversity Visa lottery website, following the detailed instructions provided by the State Department. There is no fee for entering the lottery. Lottery results will be made available only through the Entrant Status Check on the program lottery website, beginning May 3, 2016 through September 30, 2017.
For the 2017 Diversity Immigrant Visa Program, natives of the following countries are not eligible to apply: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and dependent territories, and Vietnam. Eligible applicants should not wait until the last week of the lottery registration to enter, as heavy demand may result in website delays, and no late entries are accepted. Additionally, applicants may only submit one entry, and individuals who have more than one entry will be disqualified from the lottery.