The October 2015 visa bulletin was recently published. While the new visa bulletin is much anticipated each month, this month’s visa bulletin brought a much anticipated, major change: it is now possible to file the I-485 application for permanent residence before the priority date is current!

What on earth does this mean?

First, it is important to have a basic understanding of what the visa bulletin is. For more information on the visa bulletin and priority dates, please see this post. Until October’s visa bulletin, each visa bulletin had two charts, one for family-based cases and one for employment-based cases. To determine if a “green card” is available for a particular case, we would (and still do) look at the relevant visa bulletin chart according to the particular family-based or employment-based category and country of birth, and then look at the corresponding priority date. If a client’s priority date was before the date listed on the visa bulletin, we could then file the I-485 application for adjustment of status for the client.

Now, starting with the October 2015 visa bulletin, there are two charts for the family-based cases, and two charts for the employment-based cases. The first chart in each category is labeled “Final Action Dates.” This chart is still the chart we use to determine if a green card is available yet for a particular case. That is, the green card or immigrant visa cannot be approved until the priority date is current. Again, this is still true.

However there is now a second chart for each category called “Filing Date.” This chart tells us not when a green card is available, but when it is possible for someone to file the I-485 (based on their approved or pending family-based or employment-based petition). That is, unlike previously, it is now possible to file the I-485 before the priority date is current! Please keep in mind that your priority date still must be current per the “Filing Date” chart in the visa bulletin.

Why This Change?

The Department of State and USCIS have made this change to ensure that the available immigrant visa numbers (green cards) are used efficiently. This change has been made pursuant to President Obama’s November 2014 Executive Action on immigration. When President Obama made the announcement in November, he did not provide specifics on exactly how the visa bulletin/immigrant visa system would be “modernized” but rather left those details to the agencies.

How Will This Affect Me?

This is a welcome change for thousands of foreign nationals who have been waiting years (many of my clients have been waiting 10 years or more for the green card) to be able to apply for the green card, or at least to have the benefits of having applied for the green card (EAD and travel document, primarily). Please keep in mind that the priority date must be current per the “Filing Dates” chart on the visa bulletin to file the I-485 (or proceed with the NVC).

Potential benefits for those eligible to file include:

1. Foreign nationals who are able to file the I-485 can simultaneously apply for the employment authorization document (EAD, also called a work permit) and the travel document (advance parole).
2. This means that spouses who have been maintaining H-4 status can now apply for the work permit and begin working, if they wish, without having to obtain their own H-1B.
3. It also means that foreign nationals who have been maintaining H-1B or L-1 status while waiting for a green card can now travel internationally and re-enter on the AP (advance parole) without having to have the H-1B visa stamped to re-enter the US.
4. Increased portability. That is, once a foreign national has filed the I-485, in certain instances he or she can change employers without having to start the green card process over again. For more information on this, please see this link.
5. Likewise, employers will be able to hire foreign nationals who are working pursuant to the EAD more easily, without necessarily having to sponsor them for an H-1B (and for permanent residence down the road).

Potential drawbacks include the following:

1. We routinely advise clients to maintain their underlying nonimmigrant visa status until their permanent residence is approved. That way if for any reason the I-485 was denied (whether erroneous on the part of USCIS or for any other reason), they would have the nonimmigrant status to fall back on. If a person stops working in H-1B status, for example, and ports to another employer pursuant to AC21, they are taking a risk in that they could be without valid status if their I-485 is denied.
2. It is important to timely file for the EAD extensions. Again, if you decide to drop the H-1B status (or other status) and work using your EAD, you absolutely must have a valid EAD in hand to be able to work. The EADs are typically valid for one year, but it can take 90-120 days for USCIS to process the EAD extensions. Unlike H-1B and L-1 status, it is not sufficient to simply have filed the extension, and keep working while it is pending with USCIS. You must have a valid card to be able to work. While it’s not impossible to keep track of this, it is an added burden and without careful planning, there can be gaps in employment authorization.

Do you need assistance filing the adjustment of status or applying for the immigrant visa? Please contact our offices at 804-396-3412 or at info@sumnerimmigration.com for more information about how we can assist. We are based in Richmond, Va but our clients are located throughout the US. We look forward to hearing from you!