Planning to Apply for Permanent Residency? Learn about the New Procedures in Determining Visa Availability and how it affects you

Are you seeking to adjust your status and become a permanent resident (green card) based on a family or employment-based petition? The Visa Bulletin and procedures for determining visa availability has changed! What does this mean for you?

On September 9th 2015, the United States Citizenship and Immigration Service (USCIS) announced new procedures in determining visa availability for those waiting to file for adjustment of status under a family or employment-based petition. These revised procedures are expected to streamline certain aspects of the immigration system, making it more efficient and effective, thereby reducing barriers faced by applicants trying to navigate it.

Adjustment of Status
Adjustment of status is the process by which an eligible individual already in the United States can get permanent resident status (a green card) without having to return to their home country to complete visa processing. Only those who were inspected and admitted or paroled into the United States are eligible for adjustment of status. All other applicants must obtain a visa abroad in order to get a green card.

Click here to find out more about eligibility for adjustment of status.

Individuals can obtain their green cards through different bases, such as through an approved family or employer petition, and through humanitarian programs, such as asylees and refugees. Once the petition is approved, one is only able to adjust status if there is a visa immediately available for them. Immediate relatives of U.S. citizens, which include spouses, unmarried children under 21 years of age, and parents, are exempt from this restriction. Because the number of visas available for immediate relatives are unlimited, they are eligible for “concurrent filing,” allowing them to file their adjustment of status application together with the family petition. For others, visa numbers are limited and are subject to category- and country-restrictions.

Much-needed change
By law, immigrant visa numbers for the family-sponsored (non-immediate relatives) and employment-based immigrant preference categories are capped annually, so they are not always immediately available. The U.S. Department of State (DOS) allocates a yearly limit of 226,000 visas for family-sponsored preference visas and 140,000 for employment-based preference visas.

DOS publishes a monthly report of visa availability referred to as the Visa Bulletin. This serves as a guide for issuing visas at U.S. consulates and embassies, as well as in determining visa availability for adjustment of status applicants.

The problem is that most applicants are subject to category and country-specific caps resulting in extremely long and arduous wait times for individuals with already approved family-based petitions, which is contrary to the goals of the family-based immigration system – to promote family reunification and to allow immigrants the support they need in order to build sustainable lives in the United States.

Similarly, temporary nonimmigrant workers with approved employment-based immigrant visa petitions wait years for visa numbers to become available, in large part due to statutory caps that have not changed since the 1990’s – restrictions that no longer reflect the needs of U.S. businesses and economy. While waiting for these immigrant visas, many nonimmigrant workers are prevented from changing jobs or receiving promotions, hindering natural career progression and the ability to make other long-term life plans. This negatively impacts the worker’s economic stability and his family’s security. To a larger extent, the old system negatively impacted and caused the stagnation of economic growth of local communities and the country.

As a response to these concerns, on September 9th 2015, USCIS and DOS announced new procedures that they hope will positively impact individuals with approved family- and employment-based petitions. These changes are based on President Obama’s November 2014 executive actions on immigration, as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015.

The changes include, among others:

• An updated Visa Bulletin indicating 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), providing needed predictability to nonimmigrant workers seeking permanent residency. This is also expected to increase efficiency in visa issuance to individuals and their families who are already on the path to becoming permanent residents.
• Improved procedures for monthly allocation of visas ensuring that the maximum number of available visas is issued every year, while also minimizing the potential for visa retrogression (moving priority dates backward). DOS will increase monthly visa allocation totals during the first three quarters of the fiscal year to the degree permitted by law thus ensuring that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates.

For a list of the comprehensive changes contemplated by the Department of Homeland Security, click here.

View our Visa Bulletin page here and learn to read the new charts posted by DOS.

Impact on visa applicants
The Visa Bulletin now has two charts: (A) Application Final Action Dates (dates when visas may finally be issued) and (B) Dates for Filing Applications (earliest dates when applicants may be able to apply). Click here for the charts from October 2015’s Visa Bulletin.

The adjustment of status process could be lengthy and complicated. If you are seeking to adjust status and become a permanent resident, it is important to seek the advice of an immigration attorney to evaluate the best course of action and present your case in the clearest and best possible light.