New class of cut-off dates to be created.
According to multiple reliable sources, the US Department of State (State Department) is in the process of reengineering its system for determining immigrant visa availability and will unveil a new mechanism for regulating such availability in the near future. This change appears to be in response to President Obama’s call for a modernization of the immigrant visa system contained in his Immigration Accountability Executive Actions proposed in November 2014.
The current system for determining immigrant visa availability is based on a monthly Visa Bulletin published by the State Department that contains a series of cut-off dates (which often fluctuate from month to month) that are based upon the relevant foreign national’s country/region of chargeability and Employment-Based (EB) preference category. In order for a foreign national to file Form I-485 (Application to Register Permanent Residence or Adjust Status) and have this application approved, the applicant’s priority date must be “current,” meaning that the priority date must be before the relevant cut-off date listed in the Visa Bulletin applicable to the foreign national’s country/region of chargeability and EB preference category.
It is our understanding that the State Department intends to create two separate categories of cut-off dates, both of which would be reflected in each monthly Visa Bulletin. The first, an “approval” cut-off date, would function as the current cut-off date does and would regulate when an adjustment application or immigrant visa application may be approved. The second, an “acceptance” cut-off date, would regulate when an adjustment of status application may be filed and would allow the filing of such an application, provided that the foreign national’s priority date is before the relevant acceptance cut-off date. Once the adjustment application is filed, the foreign national would be eligible for the secondary benefits available to adjustment of status applicants, including employment authorization documents, advance parole authorizations, and I-140 immigrant petition portability.
It is likely that the “acceptance” cut-off dates will be several years before the “approval” cut-off dates in the China/India EB categories, with the result being that a large number of nationals from these countries will be able to file adjustment applications immediately once the Visa Bulletin containing the new acceptance cut-off dates becomes effective.
This is obviously a major development in the employment-based green card process and will be particularly welcome to nationals of India and China, some of whom currently face delays of years before they can file adjustment of status applications.
We will continue to monitor the situation closely and will provide further information as soon as it becomes available.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Washington
Eleanor Pelta
Eric S. Bord