The State Department is expected to announce significant reforms to the employment-based immigrant visa (“green card”) categories in their monthly Visa Bulletin, the document used by the State Department to provide predictions on upcoming immigrant visa availability. The agency is expected to make an announcement in the coming week explaining how it will reform and modernize the way green card availability is regulated. These reforms are largely in response to President Obama’s November 2014 Executive Action on Immigration calling for measures to enable individuals to file their adjustment of status applications before their priority dates become current.
Green Card Availability under the Current System
Under the current system, a foreign national’s ability to file for their green card is determined by their priority date (their “place in line”), which is set when their labor certification or I-140 petition is filed. Priority dates are assigned on the Visa Bulletin based on the individual’s country of chargeability (typically the country of birth) and employment-based (EB) preference category. Foreign nationals are only able to file an adjustment of status or immigrant visa application when their priority date becomes “current” on the Visa Bulletin for their EB preference category and country of chargeability, meaning that their priority date falls on or before the date listed on the Visa Bulletin (or the Visa Bulletin indicates that their EB preference category is “current” for all individuals from their country of chargeability).
As a result, individuals from certain countries, such as India and China, face long waits before they are able to file for adjustment of status (or for an immigrant visa if applying from outside the U.S.). The filing of an adjustment of status application provides a host of immigration benefits including the ability to file for interim travel and employment benefits for the applicant and their dependent family members as well as the ability to change employers once the application has been pending in excess of 180 days (known as “portability”). Thus, for those facing long visa backlogs, the inability to obtain these benefits can mean years without a spousal employment authorization or the need to start the green card process all over again if there are significant changes to their role with their sponsoring employer, their sponsoring employer goes out of business, or they wish move to a new job.
How the Reformed System Will Work
The Reformed Visa Bulletin is expected to contain two classes of priority dates for each EB preference category and country of chargeability, the "filing" priority date and the “adjudication” priority date. The "filing" priority date will be a new priority date which provides the date on which an individual can file their adjustment of status or immigrant visa application. The “adjudication” priority date will be the date on which USCIS or the State Department can actually adjudicate and approve the pending adjustment of status or immigrant visa application (and thus, would track actual visa availability similar to the current priority date system).
The State Department has not yet provided specifics on how early the "filing" priority dates will be set relative to the “adjudication” priority date, but it is expected that it will be several years earlier than the “adjudication” priority date for severely backlogged EB preference categories such as China and India.
Benefits of Reformed System
The reformed Visa Bulletin will have a significant impact on individuals in certain EB preference categories from India and China. The most important impact will be the ability for these individuals to apply for work and travel authorization for themselves and their spouses once their "filing" priority date becomes current and they are able to file their adjustment of status applications. This could mean that their spouses, who may have been in visa categories that did not provide employment authorization, will now be able to work and generate additional income. Additionally, the foreign national employees will become “portable” once their adjustment of status applications have been pending for 180 days, meaning they are no longer tied to one employer until they receive their green card.
WHAT THIS MEANS
If the State Department Visa Bulletin reform occurs as expected, this will provide significant benefits to nationals of India and China, who are most severely impacted by the long backlog in employment based green cards, as well as individuals from other countries but who fall within more heavily used preference categories. Once released, it is expected that both the State Department and U.S. Citizenship and Immigration Service (USCIS) will issue guidance providing additional details about the reformed system including the application process and duration of time the new system will remain available.
D&S continues to closely monitor the Visa Bulletin and will continue to provide updates as they become available.
UPDATE: On September 9, 2015 USCIS and DOS officially announced the revised procedures for determining immigrant visa availability. For more details on the official announcement please read our D&S summary