Major Adjustment of Status Filing Rule Change With October Visa Bulletin

The USCIS, in conjunction with the Department of State, announced on September 9, 2015 a major change regarding the timing of filing adjustment of status applications, or submitting immigrant visa application documents, for beneficiaries of pending family or employment based immigrant visa petitions. This is in response to a previous directive from President Obama and his administration earlier this year, for the USCIS and Department of State to streamline and modernize immigration procedures.

Commencing with the October Visa Bulletin, two charts now appear under both the family based preference categories and the employment based preference categories. The first chart under each is the “familiar” chart showing priority dates for expected “final action” on family or employment based petitions. However, the second chart under each lists the visa application or adjustment of status filing date for each preference category. While visa applicants outside the US will be able to get a little “head start” on the application process under the new rules, the biggest benefit of the new rules will inure to beneficiaries currently in the US in some other lawful status, such as H1B status or student status, who will now be able to apply for adjustment of status (and with that, employment authorization and advance parole), much sooner.

For example, the EB2 “final action” date for India is May 1, 2005 under the October Visa Bulletin. This would be the traditional priority date under the common chart that has always appeared in the Visa Bulletin, and before this rule change, any adjustment of status application would have to wait until that date eventually became “current” as compared to the petition’s priority date. However, under the second application chart, an Indian national beneficiary of an EB-2 I-140 petition, who has a priority date on or before July 1, 2011, and who may be in lawful status in the US in another status (e.g., employed as an H1B worker), can now file an adjustment of status application (with EAD and advance parole). This benefit also helps related immediate family members who may be lawfully present in the US with the beneficiary.

Similarly, another notable example is the EB 3 employment-based category for nationals of the Philippines. The current priority date listed in the October 2015 Visa Bulletin is January 1, 2007. However, under the new rules, nationals of the Philippines who are beneficiaries of a pending or approved I-140 Petition, with a priority date on or before January 1, 2015, can now apply for adjustment of status if that beneficiary is presently inside the US in lawful status. The impact for such a Philippine national is HUGE!

On the family side, the differences are not quite as significant, but in most categories, an adjustment of status application (with employment authorization and advance parole), can be filed about a year or so sooner than under the old rules. This is still progress, even though not quite as dramatic as compared to certain beneficiaries in the employment-based categories.

As these dates are always subject to change every month, it is to an applicant’s benefit to file for adjustment of status as soon as they are eligible under these new rules, to avoid retrogression issues. Of course, the one drawback if the I-140 Petition remains pending, and not yet approved, is that if the I-140 is ultimately denied, I-485 fees will not be refunded. But in most cases, the benefits of filing for adjustment of status when the charts permit, will exceed the financial drawbacks.

The October Visa Bulletin can be found here:

State Department October Visa Bulletin

The USCIS press release announcing the new procedures can be found here:

USCIS Press Release on Revised Procedures for Determining Visa Availability for Adjustment of Status Applicants

And finally, the USCIS charts for the timing of filing for adjustment of status, can be found here (and which match the second chart under each visa category from the State Department Visa Bulletin):

USCIS Charts Regarding Timing For Filing Adjustment of Status Applications

To schedule a consultation to discuss your adjustment of status questions, or to seek legal representation to file your I-485 adjustment of status application, please do not hesitate to e-mail me at [email protected]