USCIS Announces Revised Procedures for Determining Visa Availability for Certain Applicants Waiting to File for Adjustment of Status

US Citizenship & Immigration Services (USCIS) along with the Department of State (DOS) is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revision in the process means that certain people will be eligible to file their adjustment of status applications (and the interim benefits that go along with that filing including work cards and travel permission) earlier than the date their Green Card priority date becomes current. USCIS states that the "revised process will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad."
 
Implementing President Obama's November 2014 executive actions on immigration—as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century—the revised process will enable foreign nationals (and their spouses) to obtain work cards and travel permission faster than they might have, and enable DOS to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the monthly Visa Bulletin. All this, according to USCIS, will "help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates."

What Is the Visa Bulletin?

Every month the DOS publishes the current immigrant visa availability in a monthly Visa Bulletin. This Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date for both the family-based and employment-based preference categories. The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS; or, if a labor certification was required to be filed with the applicant’s immigrant visa petition, the priority date is when the labor certification application was accepted for processing by the Department of Labor. Availability of an immigrant visa means eligible applicants are able to take the final steps in the process of becoming US permanent residents—namely, applying for an immigrant visa at a US Embassy or Consulate abroad or else applying for an adjustment of status to permanent residency if in the US.

What is Changing in the Visa Bulletin?

Effective in the October Visa Bulletin, there are now two charts per visa preference category:

• Application Final Action Dates (dates when immigrant visas may finally be issued); and
• Dates for Filing Applications (earliest dates when applicants may be able to apply for adjustment of status).

Applicants can use the charts to determine when they are eligible to file their Form I-485, Application to Register Permanent Residence or Adjust Status. USCIS states that to determine whether additional visas are available they will compare the number of visas available for the remainder of the fiscal year with:

• Documentarily qualified visa applicants;
• Pending adjustment of status applications; and
• Historical drop-off rate, including denials, withdrawals, and abandonments.

Who is Affected?

The October Visa Bulletin introduces the new adjustment filing date chart and allows many people who have been waiting for their Green Card priority date to become current to now file for the adjustment of status. Significantly the "Dates for Filing" for China-born and Indian-born nationals in the EB-2 category is May 1, 2014 and July 1, 2011, respectively, which is years ahead of these Green Card priority dates (January 1, 2012 and May 1, 2005, respectively). The changes also affect family-based visa applicants. Therefore, someone who has been waiting for a priority date for their Green Card may be able to apply for adjustment of status earlier. They will not get their Green Card unless the Green Card priority date becomes current but they will enjoy the benefits of being an adjustment applicant, namely the interim work card and travel permission that they can keep while their adjustment of status application remains pending.

For those eligible to apply, USCIS has more information about filing the adjustment of status. One of the most sought after benefits and advantages to filing adjustment of status is that applicants can concurrently file employment authorization and travel permission applications. An experienced immigration attorney will be able to advise if foreign nationals are eligible to file for adjustment of status and what the next steps would involve.

UPDATE SEPTEMBER 25, 2015: The Department of State (DOS) has today unexpectedly published an updated and revised October 2015 Visa Bulletin. This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and the revised dates affect priority and filing dates for certain nationalities. US Citizenship & Immigration Services explains:

Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process. The Dates for Filing Applications sections on pages 4 and 6, which have been adjusted, have been identified in bold type and highlighted.

Applicants are advised to use the revised chart when determining eligibility to file adjustment of status applications. Applicants are advised to consult with qualified immigration attorneys for questions about eligibility and the revised visa bulletin. We will post more information as we receive it.

UPDATE SEPTEMBER 8, 2015: Immigrants are protesting the amendments to the October Visa Bulletin by sending flowers to the Department of Homeland Security (DHS). Inspired by the nonviolent protest methods of Mahatma Gandhi, immigrants are sending bouquets and letters of protest decrying the bulletin reversal that affected thousands of excited applicants who were preparing to file their adjustment of status applications. Many applicants spent between $2,000 to $5,000 to prepare for the applications, not to mention countless hours and often days tracking down often difficult to obtain paperwork.
 
"We started making plans," Sridhar Katta, a mechanical engineer and M.B.A. who lives in Seattle with his wife and sixteen-year-old twin boys, said to CNN. "All our hopes were dashed within a matter of days." So far the Department of Homeland Security has only issued vague comments about the sudden turn-around. One DHS spokeswoman told CNN: "Further analysis of a recently published Visa Bulletin, intended to improve the issuance of green cards, showed that some of the new filing dates in that bulletin did not accurately reflect visa availability." Whatever happens, one can only hope that the sweet smell of the flowers will remove the sour taste left in our mouths.

UPDATE SEPTEMBER 22, 2015: In the latest Kafka-esq development in the ongoing saga stemming from the October 2015 Visa Bulletin updates and revisions that have affected thousands of immigrants, USCIS announced that beginning with the November 2015 DOS Visa Bulletin, if USCIS "determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas" they will state on the USCIS website that applicants may use the "Dates for Filing Visa Applications" chart. Otherwise, immigrants will need to use the the "Application Final Action Date" to determine when to file their adjustment of status applications. USCIS states that they anticipate making this determination each month and posting the relevant chart on their website within one week of visa bulletin publication.

ABC News: "U.S. Appeals Panel Won't Lift Hold on Obama Immigration Action"

Last week, the 5th Circuit Court of Appeals in New Orleans refused to lift the temporary hold placed on parts of President Obama's executive actions on immigration reform. The Justice Department had asked the 5th Circuit to reverse a Texas judge who had agreed to temporarily block the president's plan in February, after twenty-six states filed a lawsuit alleging Obama's actions were unconstitutional. In the two-to-one ruling, 5th Circuit judges Jerry Smith and Jennifer Walker Elrod said that "the federal government lawyers are unlikely to succeed" in the underlying lawsuit filed by twenty-six states including Texas against the executive actions. Back in February, 2015, US District Judge Andrew Hanen in Texas, in a scathing decision accusing the government of deception in their representations, ruled to place the temporary hold on President Obama's executive action to expand the Deferred Action for Childhood Arrivals (DACA) and to create the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The expanded DACA had been set to take effect February 18, and the DAPA program was scheduled to begin May 19. These programs would have granted work authorization and certain protections from deportation to millions of undocumented immigrants.

“The separation of powers and checks and balances remain the law of the land, and this decision is a victory for those committed to preserving the rule of law in America,” said Texas Attorney General Ken Paxton in a statement. While the decision is a victory for Texas and the twenty-five other states which supported the lawsuit, another fourteen states and the District of Columbia have appealed the decision, arguing that the Texas lawsuit failed to consider the economic benefits of immigration action.

''Ultimately, this is just a pause button,'' Laura Collins, the director of immigration policy at the American Action Forum, said to PRI. ''Until the court is able to rule fully on the merits of this, this doesn’t really talk about whether this program is appropriate for the executive branch to put forward.'' White House spokeswoman Brandi Hoffine said in a statement that the two-to-one 5th Circuit Court ruling ''chose to misinterpret the facts and the law.''

US Democratic Rep. Luis Gutierrez also said in response to last week’s court decision:

It is disappointing but not unexpected given the make-up of the Fifth Circuit and the panel hearing this preliminary case.  I am confident millions of immigrants will eventually apply for DAPA and DACA, because the law is undeniably on the President's side, as is public opinion. Meanwhile, I continue to work with Democrats and others who are preparing immigrant communities for the application process once the legal maneuvering is resolved and the courts reject the arguments of the Republican Governors and Attorneys General.  The longer the court process takes, the harder it is to imagine a Republican candidate remains competitive in a bid for the White House, because increasingly, this will be the defining and decisive 2016 campaign issue.

This ruling will not affect H-4 dependent spouses who are now eligible to apply for Employment Authorization Documents (EADs) as part of President Obama's executive actions. 

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses

US Citizenship & Immigration Services (USCIS) Director León Rodríguez announced today that as part of President Obama's executive actions back in November 2014, the Department of Homeland Security (DHS) is extending employment eligibility to H-4 visa holders of H-1B spouses who are seeking employment-based permanent resident status. Applications will start being accepted on May 26, 2015.

This action is "one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs." Director Rodríguez said that granting employment to these spouses will not only provide "more economic stability and better quality of life" to the families but also that it will help "U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents."

To qualify, individuals must be H-4 dependent spouses of H-1B nonimmigrants who: 

• Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or 

• Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

Eligible applicants must submit a Form I-765, Application for Employment Authorization along with supporting evidence and the required $380 fee to USCIS, beginning on May 26, 2015. H-4 applicants can begin work in the US upon approval of the application and receipt of the work card. 

As many as 179,600 individuals this year could be eligible for employment authorization under this new eligibility rule, USCIS estimates, and DHS expects that "this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society."

This announcement comes amid court challenges to President Obama's expansion of DACA as well as the possible impending shutdown of the Department of Homeland Security (the mother agency of USCIS).

USCIS Will Not Begin Accepting Applications for Expanded DACA Today

US District Judge Andrew Hanen in Texas ruled late Monday night to temporarily block President Barack Obama's executive action on the expanded Deferred Action for Childhood Arrivals (DACA) program as well as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. Consequently contrary to their original plans US Citizenship & Immigration Services (USCIS) will not be accepting applications today for the expanded DACA program, and going forward until further notice for expanded DACA and DAPA. The judge ruled that Obama's executive action failed to comply with the Administrative Procedure Act, which "calls for the White House to afford a longer notification and comment period before taking action." The Department of Justice is planning to appeal this decision, and US Department of Homeland Security Secretary Jeh C. Johnson issued a statement:

I strongly disagree with Judge Hanen’s decision to temporarily enjoin implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The Department of Justice will appeal that temporary injunction; in the meantime, we recognize we must comply with it...The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority. Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do.

Secretary Johnson goes on to note that the court ruling does not affect the existing DACA program and that individuals may continue to apply for the initial or renewal DACA under the original guidelines established in 2012. We will continue to provide updates as we receive them.

USCIS to Begin Accepting Requests for Expanded DACA on February 18

Last November President Obama announced he was taking executive actions on immigration reform, after the House of Representatives failed to act on the immigration reform bill passed by the Senate in 2013. One of the president's initiatives involve expanding eligibility for the Deferred Action for Childhood Arrivals (DACA) program to applicants of any age who entered the US before the age of sixteen and who have lived in the US continuously since January 1, 2010, as well as extending the period of DACA and work authorization from two to three years.

US Citizenship & Immigration Services (USCIS) has just announced it will begin accepting applications for this expanded DACA program on February 18, 2015, only weeks away, even as the Republican-controlled Congress heads toward a showdown with Obama over funding for the Department of Homeland Security, the mother agency of USCIS.

Who is eligible for the expanded DACA program?
Individuals of any age with no lawful immigration status who entered the US before the age of sixteen and who have lived in the US continuously since at least January 1, 2010. Applicants must also meet schooling requirements as well as not being convicted of certain crimes or posing a national security threat.

How is this different than before?
The first DACA program announced in 2012 requires that applicants have continuously resided in the US since June 15, 2007, and that they were under thirty-one years of age on June 15, 2012. Additionally the initial DACA was granted only for a period of two years.

How to file?
USCIS lists all the requirements including what documentation is required along with the necessary forms, fees, and where to send the application.

Is an attorney needed to file the case?
Matt Bray has an excellent post regarding this question.

When can the DACA case be filed under the new requirements?
On and after February 18, 2015! 

What authorization is received with DACA?
If the application is approved, individuals will not be placed into removal proceedings or removed from the US for three years unless their DACA is terminated. In addition, they will be granted employment authorization. Travel authorization (advance parole) may also be granted in certain cases.

USCIS cautions those applying for DACA to be especially wary of immigration scams. They've published a list of helpful tips for before and after filing to avoid scams and ensure that their case has been properly received and is processing correctly. Applicants for DACA cases (and in general for immigration matters) should be especially wary of anyone calling them about their immigration case and claiming to be from USCIS or the government.

Although DACA is limited in that it only defers removal and does not provide permanent lawful status, this DACA expansion is good news for many undocumented immigrants including one of America's most well-known and visible undocumented immigrants: Pulitzer Prize-winning Filipino journalist Jose Antonio Vargas, who summarized DACA: “'This is not amnesty…It’s only temporary. It doesn’t provide a Green Card. It doesn’t provide citizenship. It doesn’t provide healthcare. It doesn’t provide anything really, except free from deportation, a work permit, people can drive, people can travel hopefully, and again just not to live in fear[.]”

UPDATE: US District Judge Andrew Hanen in Texas ruled late Monday, February 16, 2015 to temporarily block President Barack Obama's executive action on the expanded DACA program as well as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. Consequently contrary to their original plans discussed in this post USCIS will not be accepting applications February 18 for the expanded DACA program, and going forward until further notice for expanded DACA and DAPA. We will provide more updates as we receive them.

The Onion: "5 Million Illegal Immigrants To Realize Dreams Of Having Deportation Deferred"

"'After escaping the drug cartel violence of my village and fleeing to America, it was the thought of a life suspended in complete limbo that kept me going as I traveled through the grueling desert terrain for three days. To be tacitly allowed to live and work in this country that I love, all the while knowing that this protection could disappear in two years, or even two months—it’s made it all worth it.'"

- The Onion

SNL Explains Obama's Executive Action on Immigration Reform

For a recent cold open, Saturday Night Live explained in song how executive action works. Featuring a bill (Kenan Thompson), an executive order (Bobby Moynihan), and President Obama (Jay Pharaoh), in this clip (in lieu of our regular "Monday Quote") we learn from President Obama of the supposedly "even easier way to get things done around here."

A bill (Kenan Thompson) and an executive order (Bobby Moynihan) explain how government really works with a little help from President Obama (Jay Pharaoh).

President Obama’s Executive Action on Immigration Reform

Last night President Obama made a long-awaited major announcement to the nation regarding the administration of the immigration system. Though short, the announcement will have an enormous impact on millions of people living in the United States without legal status. US Citizenship & Immigration Services (USCIS) today published a summary of the impending changes which provides a few more details but highlights the fact that there is much to be done to put these changes into effect. 

While all the details are yet to be released, the key piece of the announcement is a deferral of deportation for the millions of law-abiding undocumented immigrants who can prove that they were present in the US for at least five years, have US citizen or legal resident children, pass a background security check, and are willing to pay their “fair share” of taxes.

The President also announced some changes to the business immigration system designed to improve the chances for entrepreneurs and other business creators to remain in and enter the country in the future.

Before the announcement, the White House held a briefing with more details about each element of this plan. They include the expansion of the DACA program by eliminating the age limit (currently thirty-one years) for applicants who were brought to the US as children as well as expanding the period of validity of the deferred action to three years (currently two).

The plan also includes important tweaks to the enforcement priorities of Immigration and Customs Enforcement (ICE, the enforcement wing of immigration), clarifying that priority must be placed on the apprehension and removal of non-citizens who present a risk to national security and public safety.  In addition, individuals who are the beneficiaries of approved immigrant petitions filed by their employers, but whose cases are held up in the severe immigrant visa backlogs, will be able to apply for adjustment of status. While this will not necessarily result in their Green Card being issued any faster, it may give them more flexibility in their career advancement.

While the details of each component of the President’s plan have not yet been fully released or digested by immigration lawyers and advocates (we are in the process of reviewing all the finer points of the President’s plan), it is clear that the announcement will have a significant effect on millions of people—authorized and undocumented immigrants alike. It is also clear that there will be a considerable pushback from Congress in January, when the Republicans take control of both chambers.

We will be tracking the President’s plan and its implementation, and will continue to post updates as they are available.