In November 2014, President Obama spoke on prime time television to explain his promise to issue executive orders and fix as much of the dysfunctional immigration system as could be done without Congressional action. The press and Republicans in Congress criticized the program to grant “deferred action” to a significant percentage of the undocumented population (and litigation has put that element on hold), but largely overlooked the several initiatives to reform the employment-based immigration system. While the reforms outlined in November 2014 were little more than duct tape and chewing gum designed to provide modest improvement to a fully dysfunctional system, they nevertheless promised some relief to many of the long suffering applicants for permanent resident status. The State Department has finally offered its version of reform through the “modernization” of the monthly Visa Bulletin. While this duct tape may hold the process together a little while longer, eventually Congress must get serious about immigration reform. Until then, this change is a welcome effort to make the process just a little bit easier for some of the individuals subject to the long delays.For those unfamiliar, the Visa Bulletin is the “now serving” part of the line for immigrant visas. The key to the process is the “priority date,” established when the first step of the application for permanent resident status is filed. For most employment-based applications, this is the date the employer files the PERM labor certification application with the Department of Labor. Once approved, the employer files the Immigrant Visa Petition, Form I-140, with USCIS. USCIS approval assigns the priority date, recognizes the date the PERM application was filed, and assigns the appropriate visa category for the individual. The final step, filed by the individual and her family, if any, is the application to adjust status, if filed in the United States, or the application for an immigrant visa, if processed at a consulate abroad. The cutoff date in the Visa Bulletin provides the latest priority date for applications that can be processed each month. Until the October 2015 Visa Bulletin was issued, the adjustment application could not be filed or approved until the priority date was current, that is, the cutoff date was later than the priority date.
Beginning with the October 2015 Visa Bulletin, there are now two charts with different cutoff dates. The first chart, designated Final Action Dates, follows the same time lines as the prior chart and sets out the cutoff dates to determine which applications can be processed to conclusion and immigrant visas issues or applications to adjust status approved. There is, however, a second chart that is designated as the Application Dates. This new chart enables USCIS to accept applications to adjust status for cases with a priority date before the Application Date. USCIS is not required to accept these cases, but in an announcement posted to its website simultaneously with the issuance of the October 2015 Visa Bulletin, it announced that it will accept applications with priority dates earlier than the Application Date. We anticipate that USCIS will continue to do so, but it retains the right to reject applications that cannot be processed to conclusion.
The seeds for this change were planted in the summer of 2007, at a time when the State Department and USCIS did not cooperate with each other to the extent that this action suggests. Because of the backlog of security checks following the September 11 attacks, USCIS failed to process sufficient cases to conclusion to fully utilize the complement of immigrant visas each year. Thousands of visas were going unused and the delay for an immigrant visa was longer than required by restrictive quotas, prompting the State Department to open up the process to all applicants, irrespective of priority date. This resulted in approximately 325,000 applications being filed in July 2007, approximately 26,000 of which are still pending today. While the wait has been very frustrating for the applicants whose cases have been pending for more than 8 years, this experience provided the State Department with much more accurate data about the number of applications in the pipeline. Because the Bureau of Consular Affairs cannot accurately predict the number of cases in the queue, it has had to adjust to changing dynamics in the processing. Fluctuations of priority dates can be reduced by generating more accurate data about the cases in the processing queue. This is accomplished by establishing an Application Date and permitting applications to be filed before they can be fully processed, which provides the State Department with sufficient tools to better manage the periodic movement of the cutoff dates. Hopefully, this will provide better predictability and eliminate the sense that the priority date movement is subject to random influences.
This also has very significant advantages for the individuals who can now file their adjustment applications earlier than would have been permitted without the Application Date chart. The first advantage is that both applicants and family members are entitled to Employment Authorization Documents and Advance Parole while the applications are pending. Advance parole documents permit individuals to return to the United States from temporary travel abroad without the need for a visa or other documentation, to await the final processing of the application. Moreover, the permanent portability rule established by the American Competitiveness in the 21st Century (AC21), passed in 2000, provides that an individual with an application to adjust status pending more than 180 days becomes portable. That is, they may change jobs or employers, provided they continue to work in the “same or similar occupation,” without terminating their application for permanent resident status. An additional benefit will accrue to children who will reach their 21st birthday while the application is pending and may have otherwise “aged out” of their parent’s applications. By filing the adjustment application, their age and dependent status is frozen by the Child Status Protection Act.
For the first month, the variation between the Final Action Dates and the Application Dates varies among the different categories. However, in the employment-based categories most backlogged, the EB-2 and EB-3 for Indian-born applicants, the variation is most pronounced. The final action cutoff date for EB-2 India remains at May 1, 2005, but the application date is a full 6 years later at July 1, 2011. This will permit thousands of applicants with priority dates before July 1, 2011 to file their adjustment applications and secure the benefits of the pending application. The State Department will achieve greater predictability to the flow of applicants, and hopefully, the processing of all applications will become more efficient.
Employers may see both benefits and challenges from this new processing paradigm.
The anxiety caused among employees by the uncertainty and delays may abate somewhat, alleviating a little tension related to immigration processing. In the short term, however, this tension will increase as the foreign national employees struggle to understand the new rules. Because many will be able to file adjustment applications sooner, portability (the ability to change jobs without interfering with the application process) will have the greatest impact. The green card process will no longer tie employees to a particular job or employer, with the need to start over when the job changes. This is also a benefit to employers as they recruit individuals who may have filed an adjustment application based upon their current employment, but it will also free employees in the process to seek other employment. Furthermore, it also makes it easier to move employees to another position within the same company, removing immigration complications from a simple promotion.
The revision to the Visa Bulletin and the ensuing changes to immigrant visa processing creates many welcome benefits to long-waiting individuals held hostage to the numerical restrictions and the enigmatic rules limiting the number of employment-based immigrants. Paradoxically, it will be both a benefit and a curse to employers looking to retain and recruit talent from the international applicant pool. It will likely take several months, even longer, before the impact of these changes are fully understood, but we can be certain that it will increase the complexity and confusion in an already complex and dysfunctional process.