Visa Bulletin and Green Card Modernization
Why do the Visa Bulletin and green card systems need to be modernized?
The process for obtaining a green card through an employer in the US is subject to significant backlogs, due in part to a low number of green card availability established by Congress in 1990. In addition to restrictive numerical caps, the way the immigration service and the Department of State (“DOS”) calculate the numbers is outdated, lacks transparency, and results in many available visas per year going unused. According to a DHS memo issued on November 20, 2014 “hundreds of thousands of such visas have gone unissued in the past despite heavy demand for them.” As backlogs for green cards grow longer, USCIS is concerned that highly skilled migrants are increasingly leaving opportunities in the US to seek employment in other countries. Recognizing that this makes little sense, USCIS announced on November 20, 2014 proposals to remedy this situation. These proposals were subsequently detailed in a July 2015 White House report, “Modernizing and Streamlining Our Legal Immigration System for the 21st century”, available here. This report recognized that many individuals with approved employment-based immigrant visa petitions must wait years for a visa number to become available to obtain LPR status, which negatively impacts both these individuals and the economic growth of the U.S.
New procedures to determine when applicants can file for adjustment of status
On September 9, 2015, USCIS announced revised procedures for determining when applicants can file for adjustment of status according to visa availability. This means that some applicants who have been waiting to file for adjustment of status due to visa availability can apply sooner. Previously, the Department of State (DOS) would update the visa bulletin each month to reflect the current “priority dates” for both family-based and employment-based visa categories. An applicant’s priority date is the date that his or her relative or employer filed an immigrant visa petition or labor certification, if applicable. Previously, an applicant could not submit their application to adjust status, and the application could not be approved, until their individual priority date was prior to the priority date for their country and visa category, as noted in the current monthly visa bulletin.
DOS and USCIS now issue two separate visa bulletin charts for each category. DOS issues charts for cases where the applicant will apply for the green card at the U.S. Consulate outside the U.S.. USCIS issues charts for applicants who will apply for their green card within in the U.S. through the adjustment of status application.
DOS issues two charts each month. The first chart, “Application Final Action Dates”, indicates when a final determination can be made (when the green card can be issued) based on an individual’s priority date. The second chart, “Dates for Filing Applications”, indicates when an applicant can begin the application process with the National Visa Center.
After DOS issues these charts each month, USCIS will determine whether individuals in the U.S. may submit their adjustment of status applications according to the current priority dates on the “Application Final Action Dates” chart or the “Dates for Filing Applications” chart. Filing for adjustment of status before the “Final Action” date becomes current could provide important benefits to adjustment of status applicants, such as work authorization, travel authorization (“advance parole”), and green card “portability”. In the first months of implementation, however, USCIS has opted to follow the “Application Final Action Dates” chart issued by the DOS, resulting in few individuals being able to file and obtain the added benefits.
How else will the visa system be modernized?
The July 2015 White House Report issued recommendations to “help ensure that all immigrant visas authorized by Congress are issued when there is sufficient demand; better account for visa availability for persons seeking to adjust status to lawful permanent residence while remaining in the United States; and provide additional job flexibility and portability for nonimmigrant workers affected by immigrant visa backlogs.”
In addition to the recommendation to update the visa bulletin, discussed above, the report contained the following additional recommendations to streamline employment-based immigrant visas:
“Refine monthly allocation of visas. State will increase monthly visa allocation totals during the first three quarters of the fiscal year to the degree permitted by law in order to ensure that fewer numbers are left for the final quarter, thereby ensuring that visa numbers issued are as closely aligned with statutory mandates as possible.”
“Improve numerically controlled immigrant visa appointments. State’s National Visa Center will alter how numerically controlled immigrant visa appointments are scheduled for the last month of the fiscal year (September) to provide sufficient time to evaluate whether there may be potentially unused numbers. This change will allow for the scheduling of additional cases when necessary in order to maximize the numbers of visas used, consistent with the annual limits.”
Will visa priority dates advance due to this “modernization?”
According to the American Immigration Lawyer’s Association (AILA), “issues such as whether derivatives should be counted toward the overall and per country visa limitations, and whether past unused visa numbers can be recaptured will be included” in the effort to modernize the visa bulletin system. Currently, derivatives are counted separately and thus numbers are used much more quickly. If the Administration ultimately excludes derivatives from visa bulletin calculations and/or recaptures visas that were previously unused due to an outdated system, there could be significant advancements in priority. This, in turn, could result in many individuals becoming eligible for adjustment of status. To date, we have not seen this change and derivatives continue to be counted toward the overall and per country visa limitations.