Dramatic Change to Visa Bulletin: Starting October 1, USCIS Will Now Accept I-485 Filings for Certain Eligible Adjustment of Status Applicants

On September 9, 2015, the Department of State (DOS) announced a major change in the content of the Visa Bulletin. This change will dramatically affect the way that I-485 adjustment of status applications can now be filed with U.S. Citizenship and Immigration Services (USCIS), as well as immigrant visa processing with the National Visa Center and U.S. consulates and embassies overseas. This change stems from President Obama’s Executive Action on Immigration announced in late 2014 and a follow-up report from the Obama administration in July 2015 on Modernizing and Streamlining Our Legal Immigration System for the 21^st Century.

As outlined in more detail below, the Visa Bulletin now lists two different charts because of the revised procedures. One chart is called “Application Final Action Dates” (dates when applications can ultimately be processed and approved), and the other is called “Dates for Filing Applications” (earliest dates when applications can be filed). This means that many foreign nationals can file their I-485 adjustment of status applications much sooner than in the past. Before this new development, foreign workers pursuing the permanent residence process could only file their I-485 applications when a visa number was available. This will especially benefit foreign workers pursuing permanent residence in the EB-2 category from India and China. The new process that allows for filing earlier can enable these eligible foreign workers pursuing the permanent residence process to obtain additional immigration benefits, such as employment authorization and advance parole travel authorization, much sooner in the overall permanent residence process than previously could be obtained.

Change in Visa Bulletin Content

In its issuance of the October Visa Bulletin, DOS announced a major change through the implementation of two new Visa Bulletin Charts to be used for both family-based and employment-based immigrant visa cases. DOS will post two charts per visa preference category in the monthly Visa Bulletin. The charts are called the “Application Final Action Dates (dates when applications can ultimately be processed and approved)” and “Dates for Filing Applications (earliest dates when applications can be filed).” Outlined below are the charts included by the DOS in the October 2015 Visa Bulletin:

Application Final Action Dates for Employment-Based Preference Cases

(This is the same content from prior Visa Bulletins)

Dates for Filing Employment-Based Visa Applications

(This is new)

For example, based on the above charts, an individual in the EB-2 category from India can NOW file an I-485 application if the individual has a priority date of July 1, 2011, or earlier. The same individual from India would need to have a priority date of May 1, 2005, in order for the I-485 application to be approved and become a permanent resident of the United States. Looking just at these dates for EB-2, India reflects a huge change for those able to file I-485 adjustment of status applications.

This means that individuals that are eligible to file I-485 applications will also have the ability to file for employment authorization and advance parole travel authorization as part of the I-485 filing process. Such individuals have the ability to obtain employment authorization and advance parole travel documents as long as an I-485 application remains pending with USCIS. This means that for the individuals who are eligible to file (but cannot be approved for permanent residence based on the Application for Final Action chart) will have the ability to obtain separate work and travel documents for many years. Other benefits may also apply pursuant to further guidance from USCIS.

Keep in mind that these charts will change when DOS issues its monthly Visa Bulletin. USCIS and DOS will continue to work together to determine what the “Dates for Filing Applications” will be each month. As this is an entirely new process for filing I-485 applications with USCIS, it is hard to know whether the dates for filing will continue to move ahead each month, how much ahead they will move each month, or if these dates will retrogress (go backwards) as we have seen in the past. This means that potential applicants must check the monthly Visa Bulletin to determine if they have a priority date that warrants the filing of an I-485 adjustment of status application under this new process.

Filings Will Be Accepted Starting October 1 for Eligible I-485 Adjustment of Status Applications

USCIS will only start accepting Form I-485 applications for eligible applicants on October 1, 2015. Foreign nationals whose priority date will be current in October should start the process now for filing an I-485 adjustment of status application for themselves and any eligible family members. As outlined above, this is major change in Visa Bulletin content and how USCIS handles I-485 adjustment of status filings. As more details are released, we will provide further information and updates.

At this point, it is unclear if any court challenges will made to this change as we have seen with other recent immigration issues such as the DACA/DAPA injunction and the F-1 OPT STEM rule. For more information about this change announced in the October 2015 Visa Bulletin and implementation by USCIS, see the following links:

USCIS Visa Bulletin Information