As previously reported in our legal update from September 10, 2015, the Department of State (DOS) made a major change to the Visa Bulletin in early September. Then, on September 25, 2015, that Visa Bulletin was rescinded and replaced with a new bulletin. Since that time, a lawsuit was filed in the Western District of Washington, DOS published the November Visa Bulletin, the United States Citizenship and Immigration Services (USCIS) issued guidance on when to file, and rumors abound. Here is what you need to know about the changes to the Visa Bulletin.
What Happened on September 9, 2015?
In issuing the October Visa Bulletin, DOS announced a major change by implementing two new Visa Bulletin Charts to be used for both family-based and employment-based immigrant visa cases. DOS will post two charts per visa preference category in the monthly Visa Bulletin. The charts are called the “Application Final Action Dates” (dates when applications can ultimately be processed and approved) and “Dates for Filing Applications” (earliest dates when applications can be filed). The dates listed in this version of the October Visa Bulletin would have allowed a large number of people to file their I-485 applications and obtain interim work and travel benefits.
What Changed on September 25, 2015?
On September 25, 2015, DOS issued a revised October Visa Bulletin that limited the number of people who would have been able to file I-485 applications on October 1. This revised bulletin superseded the bulletin released on September 9, 2015, which would have allowed many foreign nationals to file I-485 applications on October 1. The most notable change is for foreign nationals from India in the EB-2 category. The earlier bulletin would have allowed people with EB-2 priority dates of July 1, 2011, or earlier to file. The adjusted bulletin pushed that date back to July 1, 2009.
Can People in the EB-2 Category From India With Priority Dates after July 1, 2009, File I-485 Applications at This Time?
At this time, there is no legal basis for people with priority dates after July 1, 2009, to file an I-485 application.
What Happened With the November Visa Bulletin?
There was no change in filing dates in the November Visa Bulletin. The dates in all categories remained the same as in the October Visa Bulletin. The November Visa Bulletin can be found here. There was some forward movement in final action dates in the EB-2/EB-3 India and China categories.
What did USCIS Announce?
On October 14, 2015, USCIS announced that each month, it would state on its Web page whether applicants can rely on the filing dates listed on the DOS Visa Bulletin or not. USCIS anticipates publishing this each month within about a week after the Visa Bulletin is issued by DOS. USCIS will publish this information on their website.
USCIS has announced that the November filing dates may be used.
What does all of this mean to employers and their foreign national employees trying to move forward with the employment-based permanent residence process? It means that the state of the Visa Bulletin and the filing of I-485 applications remain in flux. The lawsuit regarding the change between the September 9 and September 25 Visa Bulletins remains pending, and it is hard to know how or when the lawsuit may resolve or clarify issues with the two Visa Bulletins issued in September and the Visa Bulletins that will continue to be issued by DOS each month. With the recent statement by USCIS, employers and foreign national employees will now need to check both the monthly Visa Bulletin and the USCIS website to determine eligibility of a priority date for filing an I-485 adjustment of status application. Stay tuned on the Visa Bulletin roller coaster as we are sure more is to come on this important issue for employers and their employment-based permanent residence applicants.