USCIS, in coordination with Department of State (DOS), is re- vising the procedures for determining visa availability for ap- plicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revised process will better align with procedures DOS uses for foreign nationals who seek to become US permanent residents by applying for immigrant visas at US consulates and embassies abroad. This revised process will enhance DOS’s ability to more ac- curately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bul- letin. This will help ensure that the maximum number of im- migrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates. The Visa Bulletin revisions implement November 2014 ex- ecutive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson, as de- tailed in the White House report, Modernizing and Streamlin- ing Our Legal Immigration System for the 21st Century, issued in July 2015. What is Changing? Two charts per visa preference category will be posted in the DOS Visa Bulletin: Application Final Action Dates (dates when visas may finally be issued); and Dates for Filing Applications (earliest dates when applicants may be able to apply). Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. Applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Resi- dence or Adjust Status. To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with: Documentarily qualified visa applicants reported by DOS; Pending adjustment of status applications reported by USCIS; and Historical drop off rate (for example, denials, withdrawals, abandonments). DOS publishes current immi- grant visa availability infor- mation in a monthly Visa Bulletin. The Visa Bulletin in- dicates when statutorily lim- ited visas are available to prospective immigrants based on their individual pri- ority date. The priority date is gener- ally the date when the appli- cant’s relative or employer properly filed the immigrant
visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immi- grant visa petition, then the priority date is when the labor cer- tification application was accepted for processing by Department of Labor. Availability of an immigrant visa means eligible applicants are able to take one of the final steps in the process of becoming U.S. permanent residents. AILA Talking Points on October 2015 Visa Bulletin Changes n The visa modernization initiative announced by President Obama last year has moved forward slowly. While AILA sub- mitted recommendations for a swath of substantive changes the Administration could make within its executive authority, we have not seen great progress. n One bright spot is a change to the Department of State's current system of determining visa eligibility. Now there are two important dates listed on the monthly Visa Bulletin: the "filing date," which determines when individuals can submit their permanent residence applications, and the "final action" date, which determines when the DOS or USCIS can make a decision on the applications. n If the immigrant has a "priority date" earlier than the listed "filing date" for their particular visa category and coun- try, they will be able to file their applications for permanent residence earlier than they would have been allowed under the old process. However, they will still have to wait for the "final action" date to become current before permanent residence can be approved. n For people who are in the United States stuck in the long visa backlogs, this means they will be able to receive employ- ment authorization and travel documents while they await final action on their cases. n Though most individuals stuck in the employment-based backlogs already have employment authorization through an existing temporary visa, this procedural change will give them greater flexibility and job mobility while allowing them to maintain their status. n Individuals stuck in the family-based backlogs will be able to seek employment while waiting their final determina- tion, bringing more economic stability to these families, though in most cases it will only reduce their wait for employ- ment authorization by a few months or a year. n As a bonus, this new system will provide the Department of State and USCIS with better data for determining overall visa demand, which should allow the State Department to make better predictions regarding future backlog movement. n There's no way for AILA to determine how many people may be affected by these changes. n What the country needs though, is more than incremen- tal "baby steps." We need Congress to acknowledge that the outdated immigration laws burden employers, immigrants, families, and communities. We need something better; we need comprehensive immigration reform. To be continued
Allen E Kaye, a Phi Beta Kappa graduate of Queens College of the City of New York, Columbia Law School (JD) and New York University Law School (LLM), is the President of the Law Offices of Allen E. Kaye and Associates and Of Counsel to Pollack, Pollack, Isaac and DeCicco. He is a past national president of the American Immigration Lawyers Association and co-chair of the Immigra- tion Committee of the Queens County Bar Association. He has been selected by Martindale-Hubbell as a 2014 ‘Top Rated Lawyer’ in the practice of Labor and Employment (for Immigration). Questions for publication may be sent to Kaye at 225 Broadway, Suite 307, New York, NY 10007 or by e-mail at Al- lenEKaye5858@gmail.com
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