USCIS, in coordination with the Department of State, has announced a new procedure for determining eligibility for filing immigrant visa applications and adjustment of status applications for foreign nationals whose permanent residence cases are subject to the visa wait list. This is part of the strategic initiative for modernization and streamlining of the U.S. immigration system, outlined by the Federal Government in July 2015, and is primarily designed to improve visibility and predictability of the level of permanent residence cases currently pending and/or about to be filed with USCIS. This new system is based on already existing procedures used by the Department of State for foreign nationals who become permanent residents through immigrant visa applications at U.S. consulates abroad.

Existing Visa Bulletin system

Each month, consulates and USCIS report to the Department of State how many permanent residence applications they have received in a chronological order and how many are still pending review. Based on these reports and on existing historical data, the Department of State makes a statistical projection as to how many foreign nationals will apply for permanent residence the following month. If the expected number of applicants will exceed the monthly allocation, the particular category is considered oversubscribed and a “cut-off” date is set to control how many (if any) additional applications are accepted for processing and also which of the pending cases would become eligible for approval. The cut-off date is critical because it not only influences which pending adjustment of status applications may be approved but, of equal importance, it also determines whether applicants are allowed to submit new adjustment of status applications.

New Visa Bulletin system

There are two types of cut-off dates under the new system: one is for those who already have a pending adjustment of status application, and the other is for those who are yet to file new adjustment of status or immigrant visa applications:

Final action date

This date determines which permanent residence cases are ready to be approved, e.g. ready for final action. It applies to I-485 adjustment of status applications already filed and pending with USCIS, as well as immigrant visa applications currently being processed by the Department of State’s National Visa Center if the foreign national will apply for an immigrant visa at a U.S. consulate abroad.

Filing date

This new type of cut-off date controls who is eligible to file immigrant visa applications with the National Visa Center and, upon USCIS authorization issued on a month-by-month basis, also submit I-485 adjustment of status applications. The filing date is set to be earlier than the final action date, depending on Department of State projections on when the category is ultimately expected to become current.

How is the new system going to work in practice?

To illustrate how the new system will work in practice, consider the following examples:

Employment immigration

Irfan, an Indian born mechanical engineer, has an approved I-140 immigrant petition under the EB-2 category with a priority date of April 17, 2010. The EB-2 final action cutoff date for Indian nationals in the EB-2 category is currently January 1, 2006. Irfan’s priority date is not yet current because it is later than the cut-off date. Under the old visa bulletin system, he is not only prevented from becoming a permanent resident until his priority date becomes current but he is also not allowed to even file his I-485 adjustment of status application.

Under the new system, Irfan’s priority date is still not current when compared to the final action date (meaning that his permanent residence cannot yet be approved). However, and this is the crucial different with the old system, his priority date is current when compared to the new filing date (meaning that he may now file his I-485 adjustment of status application). While Irfan will not become a permanent resident right away, he will be able to at least file his I-485 adjustment of status application.

Family immigration

Ina, a German national, has recently married Marcus, a U.S. permanent resident. Marcus has filed an I-130 relative petition for his spouse and she was classified in the F2A visa category, which currently has a wait list with a final action cutoff date of April 15, 2014. Ina’s priority date is January 7, 2015. Ina’s priority date is not yet current when compared to the final action date; however, it is current in respect to the new filing cutoff date. This means that she may file her I-485 adjust of status application, if she is currently in the United States, or submit an immigrant visa application at the National Visa Center. Under the old system, Ina would not have gained any substantive benefit from her husband’s I-130 classification petition and would not have been eligible to apply for a work permit in the United States based on the permanent residence case.

Why is it so important to file the I-485 adjustment of status application if the case will still be subject to the visa wait list?

The ability to file I-485 adjustment of status application is critical for virtually all foreign nationals whose permanent residence cases are subject to the visa wait list. There are a number of key benefits that are integral to every I-485 application that are especially important for Indian, Chinese and Philippine foreign nationals who are otherwise subject to very lengthy wait lists:

Work permit/travel authorization: The foreign national and his or her family members are authorized to apply for work permit and travel authorization documents along with their I-485 adjustment of status applications. The principal foreign national may use this work permit for employment authorization instead of applying for work visas such as H-1B or L-1. The travel document is a convenient way to ensure foreign travel eligibility while avoiding the need to apply for visas at U.S. consulates abroad. Also, family members are allowed to join the principal’s permanent residence cases only at the I-485 application stage, which means that they may also apply for work permit and travel documents.

Increased job mobility: Of equal importance, the filing of an I-485 adjustment of status application also confers increased job mobility for those who have employment based permanent residence cases. Foreign nationals whose I-485 cases remain pending review with USCIS for more than six months, which is virtually guaranteed if their cases are subject lengthy visa list wait times, may safely change employers without risking their permanent residence cases.

Driver license and social security number: Family members may apply for social security numbers if they have work permit cards. Also, this will make it easier to apply for U.S. driver licenses.

Could everyone benefit under the new system?

Not everyone may benefit under the new system. Those with recently filed permanent residence cases have recent priority dates. If their priority dates are not on or earlier than the published filing cutoff date then they will not be eligible to apply for adjustment of status or file immigrant visa applications. They will essentially fall under the old system. Also, USCIS reserves the right to evaluate the number of I-485 adjustment applicants received on a monthly basis and determine whether it would honor the filing cutoff dates published by the Department of State. If USCIS determines that is has receives enough applications, it may revert to the old system and focus only on the final action date.

Why did the government update the October visa bulletin only two weeks after publishing its original version?

It is undisputed that the U.S. government does not have a clear estimate of how many permanent residence cases are currently pending or are about to be filed with USCIS, and a lot more transparency is needed with the immigrant visa allocation process. A perfect example of this seemingly absurd notion is what happened on September 25, 2015 when the Department of State unexpectedly rolled back most of the filing cutoff dates in the October 2015 visa bulletin, approximately two weeks after releasing the original bulletin and only five days before the start of the October filing period. The EB-2 employment category filing cutoff dates for China and India were rolled back by 1.5 and 2 years, respectively, while the EB-3 filing cutoff date for the Philippines retrogressed by five years! Family based categories were affected as well, with Mexico’s FB-1 and FB-3 rolling back by three months and 1.5 years.

While the government has not provided any explanation of this drastic last-minute change, made in the 11th hour and without any prior notice, the most likely explanation is that USCIS must have realized in the last moment that they had a lot more pending permanent residence cases than they originally thought and this has caused the government to take such an aggressive action to avoid exceeding the authorized annual permanent residence number quota. This move has affected thousands of permanent residence applicants, who have spent thousands of dollars in reliance on the original visa bulletin, and has triggered a storm of criticism over government incompetence and even a class action lawsuit, asking the courts to compel the government to honor the dates in the original visa bulletin. This situation is still unfolding but one thing is crystal clear: the U.S. government has a lot of work left to do to implement a substantially better way of allocating and predicting permanent residence number quota usage and bring our immigration system in line with the 21st century.