Early Filing for Green Cards and EADs is Here

By Attorneys Ben Loveman and Nancy E. Miller

United States Citizenship and Immigration Services (USCIS) and Department of State (DOS) have announced a significant modification to the visa bulletin system.  The change is part of President Obama’s package of administrative actions aimed at improving the immigration system. The new system allows thousands of people to file their applications for adjustment of status (green cards) with USCIS in advance of the date that their application can be approved.  Allowing early filing will provide huge benefits for potential applicants who will be eligible for employment authorization, advance parole, job portability, and other benefits based on the ability to file their adjustment of status applications early.

Effective October 1, 2015, the visa bulletin will include two separate charts for each employment and family-based visa categories.  The two charts will be posted in the visa bulletin and will be labeled as “Application Final Action Dates” (the date when DOS or USCIS may issue a visa or approve an adjustment of status application) and “Dates for Filing Applications” (the earliest date on which an applicant may submit a visa application with DOS or adjustment application with USCIS).  In practice it appears that the date for filing chart will indicate dates well in advance of the final action dates chart.  For instance, on October 1, 2015 the F-1 Family Preference for the Philippines (unmarried son or daughter of U.S. citizen) date for filing will be September 1, 2005 whereas the final action date will be June 1, 2001.  This means that eligible applicants with priority dates earlier than the filing date can submit their applications for adjustment of status (if in the U.S.) beginning on October 1, 2015 but that the application will likely not approved for several years.  The filing date is well in advance of the action date for several other categories including the F2B, F2A and EB-3 categories.

The beneficial effects of the addition of this new earlier date for filing chart will primarily accrue to persons inside the United States who are either maintaining lawful status or are covered by INA § 245(i) (because they are the principal or derivative beneficiary of a petition of labor certification filed earlier than January 14, 1998 or earlier than April 30, 2001 and they were physically present in the U.S. on December 20, 2000).   For applicants outside the United States the date for filing chart may correspond with the date that the National Visa sends out notice that they may submit their visa applications and pay visa fees.  However, they will still need to wait until their priority date is earlier than the date listed in the final action date to be eligible to receive a visa.

For persons in the U.S., the change is extremely important and the benefit will be clear.  Applicants in the U.S. will be able to submit their adjustment applications based on the date for filing chart and then, on the basis of the pending application, they will be eligible for temporary and renewable work authorization and travel permission.  Further, for employment based applicants, the ability to file an adjustment application early should lead to greater job flexibility and the ability for derivatives spouses and children to obtain employment authorization.  While the new system is extremely beneficial to numerous potential applicants it does not eliminate backlogs or necessarily even reduce current wait times. What it does is provide benefits to a portion of the applicants, here in the U.S., who are waiting in those backlogs for the chance to become a resident.

The new two chart system raises issues which have not yet been addressed by USCIS or DOS in connection with this announcement.  For instance, it remains to be seen which chart will be used to determine when the visa is considered to be available for the purposes of the Child Status Protection Act.  Allowing applicants to use the date for filing chart for the CSPA would be a major benefit (to applicants abroad and in the U.S.) because the earlier a visa is considered available, the earlier the applicant can lock in their children’s ages under the CSPA.  For instance, an EB-3 applicant from the Philippines with a priority date earlier than January 1, 2015 could lock in their children’s age now whereas under the prior system they might have had to wait eight or more years in order to do so.

The new visa bulletin system represents a fundamental change to the way visa and adjustment of status applicants will be treated under the law. The change may impact many aspects of a potential applicant’s case.  If you or a loved one believe this new system will impact your case you should contact an experienced immigration attorney immediately to discuss the potential benefits to your case.