Ep. 59 October Visa Bulletin and Changes Allows Much Earlier I-485 AOS Filings: How does it work?

  • Starting on October 2015 visa bulletin will have a new separate cut-off date chart for finding adjustment of status cases.
  • Having this dual chart will have several purposes.
  • This is an advantage to those who are working for the same employer for years.

Raw Transcript:

Jacob: Hello everybody and welcome to Ask an Immigration Lawyer Podcast. You ask, we answer, simple. This is your host, Jacob Sapochnick.

Today I wanted to answer and explain the changes, the amazing changes that were announced last week about the October 2015 visa bulletin which will allow an earlier filing of adjustment of status applications known as the 45. This is a change that, I believe, we have not seen in more than 40 years.

The October 2015 visa bulletin basically creates a new and revise system of essentially two cut-off dates. As you know, typically when we look at the visa bulletin there is a date where we know anything earlier than date would allow the person to file for their adjustment of status. Well, as of October, this visa bulletin will have a new separate cut-off date chart for finding those adjustment of status cases 45’s. Those cut-off dates are actually going to be much later than the final action on cut-off dates in the chart.

Give an example. The employment based EB2 second preferences, let’s take for example India. In the new October 2015 bulletin it is set to July 1st 2011. This is the new category for filing. But the cut-off date for the final action on EB2 cases filed from India is May 1st 2005. This is very, very interesting because people that are going to be filing as of October 1st 2015, for example if they’re from India and they have a priority date before July 1st 2011, they will be able to file for their adjustment of status without needing to wait for their final action date which is going to be in May 2005.

I’m going to explain that a little bit more how that rule works because a lot of people are a little bit confused as to how it really works and I’m sure there’s going to be a lot of updates and examples.

The idea is that having this dual chart will have several purposes. First of all, cases that are filed for consular processing and cases that have a priority date earlier than the corresponding date of filing, they should be notified to assemble and submit their documentations to the National Visa Center.

It’s not really going to change anything for these people that are going to get notifications for the state department, but at least they know that if they are in the US then they have an option to apply for the adjustment of status. I think this is really worth the main differences and where this change is going to make a difference.

Again, we have people from countries like the Philippines and China and India that have been waiting for years working on H1B cases visas and other visas and they’re not able to adjust their status, they’re not able to leave their employers. I think this change is going to help a lot, make people a bit more mobile. I will explain that a bit more.

Let’s take for example if you look at this dual chart then now we got … we’re going to post the link. I’ll try to post the link here as well. But let’s take, for example, employment base category EB2.

The EB2 category for all countries, except for India and China, is current. But for EB2 India the cut-off date is set to May 1st 2005, which is the date of adjudication. The date of filing chart, however, has a much better date. This is I’m talking about the new revised visa bulletin.

The filing date is set to July 1st 2011 which means that an EB2 person with a priority date, for example, let’s say June 30th or June 28th 2011 or earlier, actually will be eligible to file for adjustment of status on October 1st. Even though the adjustment of status 45 will not be adjudicated for years to come until the date will be current, meaning May 1st 2005. Do you see how that works?

Before October 1st these applicants will have to wait for their adjudication date which is, at this point, is May 1st. But now with the new chart that allows us to use what is called the filing date, and now it’s July 1st 2011. So anything before that, these people can file for adjustment of status.

If you look, for example, at EB2 for China, the filing date cut-off is set to January 1st 2012 which is great. But if you look at China’s date of filing, it’s cut-off May 1 2014 which is much, much closer. And people that have applications that are the priority date before May 1st 2014 can actually file for the adjustment of status which is really an amazing change that we’re seeing that is happening right now with this new multiple visa bulletin.

If you look at, for example, the EB3 … So we have, for example, EB3 for Mexico is set to August 15, 2015. The date of filing chart sets these dates at September 1st 2015. It’s not that far but, again, it allow people to file their adjustment of status sooner and, of course, they’ll be able to wait while they are getting their work permit and travel documents and it will make their process a bit more flexible.

But, you know, one of the other advantages of this is that people that have been working for employers for years, they were waiting for their priority date for years, they couldn’t leave these employers. Now, with this new change, there’s a very interesting thing that will happen is that because of the 180 day portability rule in the American Competitiveness Act in the 21st Century, AC21, this rule allows people in EB categories that have a proof the I-140 visa petitions and have 45 that’s been pending more than 180 days, 6 months, to change employers if their new employment isn’t the same or similar occupation which is actually part of the regulation.

So that’s interesting because imagine if we have an employee that is working for a software company and he’s been in H1B status since, let’s say 2010, and this employer filed for his perm application in 2011. Everything has been adjudicated and his I-140 has been opposed since then but his priority date is not current. This person cannot change employers because he’s not able to file for his adjustment of status because the priority date is not current.

Well, under this new rule, let’s say this person is from India and he has a priority date before July 1st 2011. Well, now he’s able to file for his adjustment of status and 6 months from now, around let’s say April or late April of 2016, that person will be able to put and leave his employer and find a new employer in the similar category. And that new employer would not need to file for his adjustment of status. This is really huge. Because now people will not need to rely on the H1B visa anymore that is already backlogged and basically can time their movement between company to company by filing their adjustment of status and basically going with that 6 months rule. This is going to be really amazing. And, again, another benefit of this new visa bulletin change.

Another example in the EB5 category. The new rule is a really good benefit for Chinese investors because EB5 category for people from China will be October 8 2013 in October and any Chinese people in the EB5 category with the priority date before … this bulletin before May 1st 2015 will be able to apply for a green card in October. So that’s huge. A huge help for the Chinese investors as well as part of the changes. A lot of changes in the EB2, EB3 category, EB5, and the ability to move to a new employer, much faster after waiting for 6 months.

Again, these changes are really good, are really powerful, and it’s going to take some time to understand how that work so we’re going to try to update and put some more examples.

Of course, even though people will need to wait for their permanent residence for years for their priority dates, at least they have more flexibility now with filing for work permits, with filing for adjustment of status which is work permit is a benefit of that. While they’re here, it will be easier for them to transfer to new employers as they wait for their priority dates to become current. So it’s a major relief for people that are stuck waiting for years for their green cards. This is already a new beginning and we hope to see more changes.

Hopefully a little bit light on the new October visa bulletin changes. Hopefully these examples makes a little bit of sense for you, and this explanation is a little bit helpful to understand these changes that are happening and are coming to us in October 1st.
Again, just to summarize. There’s going to be a new structure for the visa bulletin system. We have new charts. One of them is the actually priority date and the other one is the date of filing that now will be used to allow people to file their adjustment of status earlier.

We are very excited about these changes and we hope that if you have any questions you are able to email us at jacob@askanimmigrationlawyer.com. Also post your comments and questions on our blog. Once again, this is a major change that reflects a revised visa bulletin system with dual cut-off dates. Again, separate cut-off date chart for filing application of adjustment of status and this is very, very exciting news.

Once again, thanks for listening. This is Jacob Sapochnick here. You ask, we answer, simple. We’ll see you at our next episode.

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