VIA Times – October 2015 Issue Vital News, Vibrant Views for Asian Americans in Chicago & Midwest
By: Robert Gard
Allow me to start this month’s article with an apology for the confusion, since the Department of Homeland Security, USCIS and State Department Visa Office sure aren’t apologizing for their “miscalculation.” The BIG immigration news for October 2015 is the start of fiscal year 2016 on October 1, 2015, and the issuance of a new October 2015 Visa Bulletin on September 9, 2015, followed by a governmental acknowledgement of “miscalculations”, and the issuance of a revised October 2015 Visa Bulletin on September 25, 2015, taking away some of the opportunities for early Immigrant Visa or adjustment of status form I-485 filing that had been previously published in the initial September 9th release of the October 2015 Visa Bulletin. Victor Nieblas Pradis, President of the American Immigration Lawyers Association (AILA), stated “For people who have been patiently waiting in line and are stuck in the long visa backlogs emblematic of the U.S. legal immigration system, this is yet another huge letdown.”
He continued, “So many people spent time and money getting their applications ready to file and now they are told, due to government miscalculation, that they can’t file after all. This mistake affects real people: individuals who have already made important life decisions based on previously released information published by the government two weeks ago. They now, once again, face extended delays before they can get travel documents and employment authorization. In the long run, the announced changes to the visa bulletin are improvements to the system that will eventually help thousands of families and individuals to plan and get on with their futures, but in the short run this miscalculation has serious consequences. Frankly, they deserve better, and the Administration should be ashamed and embarrassed at the harm this mistake has caused,” he concluded.
Background Information (From USCIS Notice of 9/25/2015)
USCIS, in coordination with Department of State (DOS), is revising the procedures for determining visa availability for applicants 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 U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad. This revised process will enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. This will help ensure that the maximum number of immigrant visas is issued annually as intended by Congress, and minimize monthto- month fluctuations in Visa Bulletin final action dates.
The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson, as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015.
I will start by outlining the changes in the Visa Bulletin that were introduced in the September 9, 2015 initial release of the October 2015 Visa Bulletin.
On September 9, 2015, the Department of State and USCIS jointly announced new procedures that will allow individuals who are stuck in the family-based and employment-based immigrant visa backlogs to start their immigrant visa paperwork or apply for adjustment of status before their priority date becomes current and an immigrant visa becomes immediately available.
Beginning with the October Visa Bulletin, there are now two charts listing dates for each preference category and country of chargeability: (1) An “Application Final Action Dates” chart (“Final Action Date”); and (2) a “Dates for Filing Applications” chart (“Filing Date”). USCIS has also issued a fact sheet describing the new procedures. Previously, the Visa Bulletin only listed a single chart of cut-off dates, which was the same as the newly labeled “Final Action Date” chart. These changes will impact immigrant visa applicants and adjustment of status applicants as follows:
· Immigrant Visa Applicants (Consular Processing): Individuals with priority dates earlier than the date listed on the “Filing Date” chart for their preference category and country of chargeability will be notified by the National Visa Center that they may assemble and submit their documentation and begin the immigrant visa application process. However, a final decision on the immigrant visa application cannot take place until the priority date is current (i.e., is earlier than the “Final Action Date”).
· Adjustment of Status Applicants: Individuals who are in the United States and are eligible for adjustment of status must use the “Final Action Date” chart to determine when they may submit their applications for adjustment of status, unless the Visa Bulletin indicates that they may instead use the “Filing Date” chart. The early “Filing Date” chart may only be used by adjustment applicants if USCIS determines there are sufficient immigrant visas available to support the filing of additional adjustment applications beyond that which would be received under the “Final Action Date” chart.
The October 2015 Visa Bulletin permits both family- and employment- based immigrants to use the “Filing Date” chart to file adjustment of status applications with USCIS for the month of October. Thus, individuals who have a priority date earlier than the “Filing Date” cut-off for the month of October may submit an adjustment of status application in October. These individuals will also be able to obtain employment authorization and advance parole as an adjustment applicant. However, please note that there is no guarantee that adjustment applicants will be able to benefit from the earlier “Filing Date” chart in any given month moving forward.
This chart, which compares the “Final Action Dates” to the “Filing Dates” as reported in the October Visa Bulletin, provides some insight into the categories that are most impacted in October. Of particular note:
· The “Filing Date” for most of the family-based categories is less than 1 year and up to around 2 years earlier than the “Final Action Date,” with the exception of F-1 Philippines with a difference of 4+ years, and F-3 Mexico with a difference of 2+ years.
· The employment-based categories most impacted by the October Visa Bulletin are:
o EB-2 India: Final Action Date = 5/1/05; Filing Date = 7/1/11
o EB-3 Philippines: Final Action Date = 1/1/07; Filing Date = 1/1/15
o EB-2 China: Final Action Date = 1/1/12; Filing Date = 5/1/14 EB-3 China: Final Action Date = 10/15/11; Filing Date = 10/1/13
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).
Revised Visa Bulletin for October 2015
On Sept. 25, the Department of State (DOS) published an updated Visa Bulletin for October 2015. This bulletin supersedes the bulletin for October 2015 that was originally published on Sept. 9, 2015. Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process.
The Dates for Filing Applications sections on pages 4 and 6, which have been adjusted, have been identified in bold type and highlighted. Applicants should use the chart published by DOS on Sept. 25 when filing for adjustment of status. This chart has also been updated on uscis.gov. Please be advised that DHS will rely on this revised bulletin rather than the bulletin published on Sept. 9, 2015, when considering whether an individual is eligible to file his or her application for adjustment of status. The Dates for Filing Applications chart is a part of the revised procedures for determining visa availability for applicants waiting to file for adjustment of status that USCIS announced on Sept. 9, 2015.
COPYRIGHT BY AUTHOR — 2015 This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published and distributed with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. It is submitted for publication by the author with the understanding that each individual case is different, and this article is not a formal legal opinion and should not be relied upon as advice by the author in a particular legal situation. HONDA, HIRONO HONOR
