By Farhad Sethna, Attorney ©2015
The USCIS and the Department of State jointly proposed a “solution” to the huge backlog in priority dates, especially for Employment-Based EB-2 and EB-3 applicants born in the People’s Republic of China and India.
Background about the priority date issue can be found in other articles on my blog.
WHAT IS THIS SOLUTION?
Beginning with the new priority date chart (called the “Visa Bulletin”) for October 1, 2015 (the Visa Bulletin is issued monthly, usually by the early to mid-month for the succeeding month), the chart will contain not just two tables, but four.
The Visa Bulletin currently contains two tables, one listing priority dates for Family Based petitions, the other listing priority dates for Employment Based petitions.
Those two tables will continue to be in the new Visa Bulletin, but will be called “Application Final Action Dates”, for family and employment categories. This will be the “true” priority date, which indicates which applications for Permanent Residency can finally be approved, and “Green Cards” issued.
The big news is the two additional tables, one for each category – Family and Employment.
What do these tables show?
The new tables, which are called “Dates for Filing” show the dates that applications for Adjustment of Status (“Green Card”) can be filed by aliens currently in the USA on other visa statuses. These dates are far in advance of the “real” priority dates (the “Application Final Action Dates”), and hence will allow many thousands of aliens who are waiting for years for the priority dates to advance to file their “green card” applications.
While the applications cannot be approved till the “Application Final Action Date” becomes current, there are substantial benefits to aliens and their families by filing the adjustment applications.
HOW WILL THE PROCESS WORK?
Effective October 1, 2015, the USCIS will begin accepting Adjustment of Status (“Green Card”) applications even from individuals who do not yet have a current priority date, as long as their individual priority date was BEFORE the “Dates for filing” in their applicable immigration classification.
The USCIS reasons that those priority dates will come up sometime in the future, and estimates that based on demand and supply, the individuals currently waiting to file their adjustment of status applications can go ahead and file those applications. The applications will remain in a queue, since the priority date (the “Application Final Action Date”) has not yet been reached.
There are several important benefits that go to aliens who are able to file these adjustment of status applications earlier rather than wait for their priority dates. These include:
Ability to apply for an receive employment authorization documents for self and family;
Ability to apply for and receive advance parole to return to the United States after a foreign trip without having to obtain a US Visa, and without abandoning the adjustment of status application.
Please note however, that simply by being able to file the adjustment of status application does not mean that the green card will be approved anytime soon. The policy does not change the priority date backlog. That can only be changed by law, through an act of Congress. Congress must either increase the number of immigrant visas allotted, or change the process by which visas are issued, so that the backlogs can be eliminated. This new policy by the USCIS is purely a stopgap measure in order to assist individuals-primarily from India and China- who have been waiting for years and years to be able to apply for their green cards.
The measure will be felt most by EB-2 and EB-3 applicants from India and China. For example, at the time of this writing, EB-2 applicants from India currently have a priority date of May 1, 2005. Under the new policy, they may be able to file their green card applications if their “Date for Filing” is on or before July 1, 2011, a jump of over six years. Likewise, individuals from the People’s Republic of China under the EB-2 category have a priority date of January 1, 2012. They can now file their adjustment of status applications if their “Date for Filing” is on or before May 1, 2014!
Please note, once again- that this new policy is just a policy, it is not a law. It is also unclear whether an applicant would have to include the medical exam for self as well as all dependent family members or the application will be received and accepted by the USCIS without the medical exam. Medical exams are currently valid for only fifteen months. Therefore, if they expire, the applicant will have to undergo considerable expense to obtain a new medical exam. Doubtless, the USCIS and/or the Department of State will come out with frequently asked questions or guidance on these other ancillary matters within the next few weeks.
It is likely that since the process will take years, the USCIS will require an applicant to appear multiple times for “biometrics” (submit fingerprints and photo) to complete background checks while the process takes its course.
Another concern is with retrogression. The “Date for Filing” calculated by the USCIS and the State Department in the latest Visa Bulletin can also regress (go back) in future bulletins. That is, once a certain number of applications is received – since demand will naturally exceed supply – it is possible that the date by which employment-based and family-based applications can be filed may also regress, and will go back to or move closer to the application final dates (the actual priority dates). There may be a time where the “Date for Filing” may simply become a “U” (Unavailable), and the alien will have to fall back on the “Application Final Action Date” to determine if and when to file the “Green Card” application.
The new policy by the USCIS and the Department of State is indeed a boon to many thousands of aliens who are waiting for green cards both under the family-based as well as employment-based preference categories. While some questions will have to be worked out, the process is in place, beginning October 1, 2015!
Stay tuned for further important updates on this new policy, which holds great promise for individuals and families who have been waiting for years for the much anticipated “green card”.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.