Big Changes to the Visa Bulletin and Eligibility to File for Adjustment | CLINIC

Big Changes to the Visa Bulletin and Eligibility to File for Adjustment

Charles Wheeler

The October Visa Bulletin contains an important change in the timing of when family- and employment-based immigrant visa applicants can apply for adjustment of status. Under the current system, family-based applicants in the preference categories can only apply for adjustment of status only when their priority date – the date their I-130 petition was filed – becomes “current,” or the visa number becomes “available,” as determined by the Visa Bulletin. Preference category applicants include the spouse and unmarried children of LPRs, and the married or unmarried sons and daughters and siblings of U.S. citizens. A priority date is current if it is before the date listed in the Visa Bulletin for the appropriate country and preference category. Under the new system, the agency is creating a separate “filing date,” which is several months before the “final action date.” The applicant will be allowed to apply for adjustment of status if his or her priority date is before the filing date.

So starting in October, Visa Bulletins will include two charts for family-based immigrants and two charts for employment-based immigrants. One is what we have been accustomed to and which defines when a visa is available for purposes of eligibility to be granted adjustment of status or an immigrant visa. This chart now designates “final action dates.” A second, and new chart, now includes another set of cut-off dates and is known as “filing dates.” This chart now determines when the person may file for adjustment of status and guides the State Department as to when to begin consular processing.

Take the following example. An LPR petitioned for his Mexican spouse, Maria, on February 27, 2015. The October 2015 Visa Bulletin final action date chart shows that those in the F-2A category from Mexico with a priority date before March 1, 2014 would be considered “current.” Under the system in place before October, only those who had a priority date before March 1, 2014 would have been allowed to file for adjustment of status. But under the new system, which includes a new “filing date,” Maria is allowed to file for adjustment of status much earlier. The filing date for Mexicans in the F-2A category, according to the October 2015 Visa Bulletin, is March 1, 2015. Since Maria’s priority date precedes that date, she is now eligible to file for adjustment of status.

This new system mainly affects applicants for adjustment of status. The National Visa Center is responsible for notifying the immigrant visa applicant and starting the consular processing stage. The NVC typically does this several months in advance of the priority date becoming current using internal guidelines as to when to start that process. The new system will more formally guide the NVC on when to initiate consular processing.  But the big change is that it will allow adjustment of status applicants to file their I-485 application and accompanying forms and receive auxiliary benefits, such as employment authorization and advance parole, much earlier than they would have under the current system.

The new system may affect adjustment of status applicants in a number of other ways. For example, all adjustment applicants currently need to include an affidavit of support with the adjustment packet. If the adjustment interview is not scheduled until the “final action date” becomes current, then more than one year may transpire. This may require updating the I-864 with current income and financial eligibility proof. But it may also allow those who needed to rely on a joint sponsor at the time of filing for adjustment to withdraw that I-864 and proceed simply with the petitioner’s updated affidavit of support.Since the adjustment applicant is allowed to work during that year-long period, and his or her income can be included as part of the total household income of the petitioner/sponsor, this may obviate the need to use a joint sponsor.

Another effect of this new system is to increase the number of potential applicants for adjustment of status. Under INA § 245(c), eligibility to file for adjustment of status for those in the preference categories requires nonimmigrants to have always remained in valid nonimmigrant status. As a result, preference immigrants who ever overstayed the period of time authorized on the I-94 entry document, worked without authorization, or dropped out of school if in F-1 status are ineligible to adjust under INA § 245(a). With the new “two-tiered” priority date system, it will be easier for certain nonimmigrants to remain in status until they are eligible to file for adjustment. Take the example above of Maria, who entered the United States on a B-1/B-2 visa (obtained presumably before her marriage) on April 15, 2015 and was allowed to stay for six months, or until October 15, 2015. Beginning October 1, 2015, she can file for adjustment until the time on her I-94 runs out, since she would not yet have violated her nonimmigrant status. Under the current system, she would have either overstayed her I-94 by the time the priority date became current, successfully obtained numerous extensions, or have left the country.

Another way this new system affects adjustment applicants relates to the Child Status Protection Act. The CSPA allows the beneficiary to use an adjusted age calculation on the day the priority date becomes current.  The adjusted age is calculated on that date by subtracting the number of days the I-130 petition was pending from the child’s biological age. Adding a new “filing date” for adjustment purposes does not affect the age calculation. But it does affect compliance with the one-year filing requirement. Those in the preference categories who are able to preserve their “under 21” child status through age adjustment calculation – and thus remain classified in the F-2A category or as a derivative – also need to file for an immigrant visa or adjustment of status (or file a Form I-824) within one year of the priority date becoming current. Under the new system, the child can apply for adjustment of status much earlier – in fact months before the priority date becomes curren t.Filing the I-485 before the priority date becomes current also satisfies the one-year requirement. This will ensure that more beneficiaries will satisfy the requirement and that fewer will be affected by subsequent visa retrogression.