On the evening of Friday, September 25, the U.S. State Department (DOS) made the surprising and disappointing decision to re-issue the October 2015 Visa Bulletin. The Department of Homeland Security and United States Citizenship and Immigration Services (USCIS) will rely on the revised visa bulletin to determine eligibility for filing of applications for adjustment of status.
The revised bulletin largely rescinds the advancements made in some of the most severely backlogged preference categories. Specifically, the “Dates for Filing Applications” in the EB-2 category for nationals in China and India were shifted to much earlier dates that in the original bulletin. The affected categories are as follows:
• EB-2 China moved back May 1, 2014, to January 1, 2013
• EB-2 India moved back from July 1, 2011, to July 1, 2009
• EB-3 Philippines moved back from January 1, 2015, to January 1, 2010
• FB-1 Mexico moved back from July 1, 1995, to April 1, 1995
• FB-3 Mexico moved back from October 1, 1996, to May 1, 1995
This is certainly frustrating news for the many individuals who had hoped to finally file adjustment of status applications based on the original October 2015 visa bulletin. We will continue to monitor this situation and we will alert our readers of any new developments on as soon as possible.
As always, please contact us with any questions.
Updating our post from last week (see below), it appears that Congress will soon pass a Continuing Resolution (CR) to temporarily extend budget funding and avoid a shutdown of the Federal government on October 1.
The CR, if passed, will fund the Federal government through December 11, 2015, at which time Congress will need to pass new funding legislation or the government will shut down at that time.
Passage of the CR will at least temporarily alleviate the pressure we and our clients faced with regard to filing and processing critical immigration applications, including Labor Condition Applications (LCAs) for H-1B workers.
Of course, this is only a temporary reprieve, and we will continue monitor this situation as the new December 11 deadline approaches. Meanwhile, if you have any questions, please contact us.
Reports out of Washington, D.C. suggest that there is an increasing possibility that the Federal government will shutdown on October 1, 2015, due to a budget stalemate, as happened in 2013.
We will provide additional guidance as the situation develops, but of immediate concern is the filing of Labor Condition Applications (LCAs) with the Department of Labor (DOL).
During a Federal government shutdown, the Office of Foreign Labor Certification (OFLC) within DOL will not accept or process any applications or related materials. This will include LCAs, which are a prerequisite for H-1B petitions.
Any applications or requests submitted prior to the shutdown and that are still pending as of midnight on October 1, will not be processed and will be held in abeyance until the department resumes operations. No new applications will be accepted after October 1 until the shutdown ends.
The DOL typically takes seven full days to process LCA filings, so it is critical that employers file the required LCA no later than Wednesday, September 23, 2015, to have the best chance of getting the certification back before October 1.
If you have any questions, or if you identify any candidates for H-1B visa processing who will need an LCA filed as soon as possible, please contact us.
USCIS and the U.S. State Department (DOS) have announced a major change to the monthly Visa Bulletin that will allow some individuals subject to lengthy quota backlogs to file adjustment of status (AOS) or immigrant visa (IV) applications much sooner than under the previous procedures.
Effective with the October 2015 Visa Bulletin, the bulletin will now contain two different charts for each visa preference category that essentially create two different priority date cutoffs. The first chart will be the priority dates eligible for “Application Final Action,” i.e. when an AOS application may be approved or an IV issued. The second chart will be the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed. Each month, USCIS and DOS will monitor immigrant visa usage and adjust both the “Application Final Action Dates” and the “Dates for Filing Applications” accordingly.
An application filed pursuant to the “Dates for Filing Applications” chart in a given month will remain pending until the associated priority date becomes current according to the “Application Final Action Dates” chart, at which time the agency responsible will make a final determination on the application.
It is important to note that the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications unless the visa bulletin specifically indicates that USCIS will allow AOS filings consistent with those dates. USCIS will determine whether there are enough immigrant visas available in each category to allow the filing of additional AOS applications. If so, the visa bulletin will state that “USCIS has determined that this chart may be used … this month for filing applications for adjustment of status with USCIS.” USCIS will also post the current “Dates for Filing Applications” charts on its website within two days of the release of the monthly visa bulletin. USCIS has stated that they will allow AOS filings pursuant to the “Dates for Filing Applications” chart listed in the October 2015 Visa Bulletin.
Although this will not accelerate when permanent status can be granted, this is an important and welcome change for the many thousands of people who have approved immigrant visa petitions (Form I-130 or I-140), but are subject to the often severely oversubscribed quotas. This is especially true for nonimmigrant workers, many of whom will benefit from greater employment flexibility and the availability of ancillary benefits, such as employment authorization and simplified travel authorization for themselves and their dependent family members.
Turning to the new October 2015 Visa Bulletin, one can quickly see the improvement, especially in the employment-based categories. As of October 1, some of the “Application Final Action Dates” will advance quite a bit, including EB-2 China (six years), EB-3 China (six years, 10 months), and EB-3 Philippines (over seven years). This is mainly due to the full annual allotment of immigrant visas becoming available with the start of the new fiscal year.
Amazingly, the “Application Final Action Dates” for nationals of India will regress by several months to May 1, 2005 (EB-2) and March 8, 2004 (EB-3). However, the new procedures provide the intended and much needed relief as the “Dates for Filing Applications” in those categories are well ahead of the Final Action Dates, specifically July 1, 2011, and July 1, 2005, respectively.
In the family-based preference categories, the “Application Final Action Dates” again advanced at least a few weeks, consistent with past visa bulletins. However, the “Dates for Filing Applications” range from 11 months to more than four years ahead of the Final Action Date cutoff. For example, the Final Action Date in the family-based first preference (F-1) category for nationals of the Philippines is June 1, 2001, but the Date for Filing is September 1, 2005.
You can view the visa bulletin in its entirety below. Please contact us with any questions.
News and Updates
Immigration law news and updates from the attorneys at Steel & Glassman