September 9, 2015
As part of his executive actions on immigration, President Obama promised to provide those who are stuck in a quota backlog with “the benefits of a pending adjustment,” and to “reduce wait times where possible.” This portion of his announcement didn’t receive much media attention for a couple of reasons: first, it is one of the less controversial aspects of the promised changes; and, second, given that the number of immigrant visas is set by law, it wasn’t clear exactly what he could accomplish on this front without new legislation.
We are finally starting to see some of these changes, beginning with a change to how cutoff dates are reported on the Department of State’s monthly visa bulletin.
“Date for Filing” vs. “Final Action Date”
Up to now, the monthly visa bulletin has served to update one (extremely important) date for each category of permanent residence applicant: the priority date cutoff. This one date determined whether you were eligible to submit your permanent residence application and also whether or not it was expected that there would be a visa number available, allowing your application to be approved.
Starting with the October visa bulletin, this has changed. There is now a “Date for Filing,” which determines whether or not you can submit the final application, and also a separate “Final Action Date,” which indicates whether or not it is expected that a visa number will be available. In many cases, the Date for Filing will be well before the Final Action Date, meaning that, for the first time, people will be eligible to submit an application for permanent residence well before it is even possible for the government to approve that application.
Benefits for Applicants
An immigrant’s place in the quota backlog is determined by their priority date. If their priority date is not yet “current” – that is, if the relevant cutoff date provided by the Department State is before the applicant’s priority date – then the applicant is not yet eligible for a green card. They are stuck waiting for a visa number to become available, sometimes for many years.
Until now, this has also meant that those stuck in a backlog are also deprived of the “benefits of a pending adjustment” – chief among them the ability to apply for a combined EAD/AP card (which provides employment and travel authorization). Immigrants holding an EAD can work for any U.S. employer, which provides significantly more security and flexibility than the employer-specific H-1B petitions that serve as the basis for many immigrant’s employment authorization. For family-based applicants, the EAD may be their first-ever work authorization in the U.S., so getting that earlier is a great benefit.
In addition, unlike U.S. visas, the travel authorization granted by the combined EAD/AP card does not need to be renewed at a U.S. Consulate in abroad – it can be renewed by application from within the U.S. This too is a significant advantage.
Earlier filing of the final application also means that employment-based permanent residence applicants will be eligible for AC21 portability earlier, meaning they can change employers (under certain circumstances) without being forced to re-start their permanent residence application from the beginning.
Benefits for the Government
As can be seen by the recent wild swings in cutoff dates for some categories, the Department of State has a difficult time predicting application volume within a given priority date range. In order to ensure the use of all available visa numbers in a given year, they sometimes advance cutoff dates too rapidly. This leads to an excess of applications being submitted, necessitating a retrogression. It can be a frustrating process for applicants, and surely is for the government as well. By divorcing the Filing Date form the Final Action Date, the Department of State will get a forecast for visa number demand within a given priority date range. This should help them make more precise movement with Final Action Dates, hopefully minimizing the future incidence of retrogressions.