October 2015 Visa Bulletin allows early filing of adjustment applications and work authorizations

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

Starting in October 2015, the Department of State (DOS) and the USCIS will utilize a new format for priority dates. (I posted those priority dates already on my website).There will be two separate charts (or priority dates) for people to follow or monitor:

“Dates for filing applications” (earliest date when a person may file for adjustment of status or for an immigrant visa)

Application “final action dates” (dates when visas may finally be issued.)

The “final action dates” are simply the old “priority dates” that have been listed on the Visa Bulletin for decades. When the dates in the “final action dates” chart are current, a person’s visa can be issued (if he is outside of the US) or adjustment application approved (if he is in the US), and they receive their green card.

The new chart shows the “dates for filing,” but it is really not a new concept. The State Department has been following this practice for years for people applying for their immigrant visas abroad. Months before the priority date is actually “current,” applicants were able to submit forms and documentation to the NVC, so that by the time the priority date was current, the case is “ready to go” for visa issuance.

That same concept will now be applied to the filing of an adjustment of status application (Form I-485). People will be able to file for adjustment of status (and work authorization) months (or sometimes years) before their priority date (or final action date) is actually current. Once the adjustment application and work authorization are filed, the person could be issued the work authorization and renew it each year, until the final action date is current and the adjustment of status is granted.

Allowing the “early” filing of adjustment applications could have tremendous advantages. For example, the priority date for “filing applications” for employment-based third preference (EB-3) and other workers (OW) is January 1, 2015.  However, the “visa issuance” date for the same two categories is January 1, 2007. This apparently means that workers in the EB-3 and OW categories may file for adjustment of status and work authorization, if the “filing date” (or the old priority date) on their case is earlier than January 1, 2015. However, no visa will be issued (or adjustment of status will not be granted) until the January 1, 2007 “visa issuance” priority date is current. Under this example, a person may file for adjustment of status if they have a priority date earlier than January 1, 2015, and renew work authorizations for approximately 8 years until the “visa issuance” date is reached, and adjustment of status is granted.

There are other advantages as well. The law allows a person to change jobs or employers if their adjustment of status application has been pending for over 180 days, as long as it is a similar job, and the new employer is willing to continue the case. Some people may, under certain circumstances, obtain “advance parole” to travel outside the US while their adjustment application is pending.  This may give them the chance to visit their family years earlier than if they had to wait for the “visa issuance date” to become current.

However, in November 2015, the filing dates may dramatically change, and in some cases could only be a few months ahead of the visa issuance date, rather than years. Therefore, you may want to take advantage of the October 2015 dates. In addition, if you are out of status, you may not be eligible to file for adjustment of status unless you have the benefit of Section 245(i).

If the priority date (on your employment or family based petition) is now “current” in the application filing date chart, you should seek the advice and guidance of an attorney, who can evaluate your situation, and determine if you can file for adjustment of status (and work authorization) years before your “visa issuance” priority date becomes current.

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