Original article posted here.
The U.S. Department of State recently issued the August 2016 Visa Bulletin, and with it came the unwelcome news of retrogression for those preparing to file the final step in the green card process from within the United States, namely an I-485 Adjustment of Status (AOS) application.
By way of background, the Visa Bulletin is published monthly and lists the length of the quota-related backlogs for those in the green card process. Since late 2015, the Visa Bulletin contains two charts, labeled “Dates for Filing” and “Final Action Dates.” The addition of a second chart listing dates for filing was intended to allow for the greater use of available immigrant visas. Those filing for an immigrant visa through the U.S. Consulates abroad can continue using the “Dates for Filing,” which are not impacted by the August 2016 Visa Bulletin. However, those filing an AOS application from within the United States must use the dates specified by U.S. Citizenship and Immigration Services (USCIS), and the agency has announced on their website (www.uscis.gov/visabulletininfo) that they will honor only the “Final Action Dates” in August 2016.
The August 2016 Final Action Dates, which control who can file an AOS application, will retrogress by several years in the highly-coveted “EB-1” category for individuals who were born in India or mainland China, as well as retrogressing in the EB-2 All Chargeability category. For the first time in recent memory, the Employment-Based First Preference (“EB-1”) category will not be current for all nationalities as of August 1, 2016. Individuals born in India or mainland China who are filing or have an approved I-140 petition in the EB-1 category will not be able to submit an AOS Application, unless their EB-1 priority date falls on or before January 1, 2010. The August 2016 Visa Bulletin shows similarly unusual retrogression in the EB-2 category for individuals born in El Salvador, Guatemala, Honduras, Mexico, the Philippines and those who fall in the “All Chargeability Areas,” which covers nearly all nationalities. As of August 1, 2016, the above-specified EB-2 categories will move backwards more than two years from being current (e.g. July 2016) to February 1, 2014.
What this means for Employers and Beneficiaries
Employers and green card applicants are accustomed to the EB-1 and EB-2 “all other” categories being current, meaning there is no quota-related wait, and being able to submit the final AOS application at the same time as the I-140 petition or any time thereafter. However, starting on August 1, 2016, those with recent priority dates will no longer have the ability to immediately file an AOS application. They must wait until their priority date becomes current in future visa bulletins. Priority dates are expected to move forward again at the start of the fiscal year on October 1, 2016, but until the dates move forward, we expect a period of two months or longer where an AOS application may not be filed by a number of categories of individuals.
Impact and Recommendations
Those who will be impacted by this retrogression may still file an I-485 AOS application from now until the end of the month, assuming they otherwise qualify to do so. The application must be received by USCIS by the final business day in July, which is Friday, July 29, 2016. If the application is timely filed, it will allow for several benefits. First, the applicant and her family are eligible to receive a temporary travel and work permit, known as an Employment Authorization Document (EAD card) and Advance Parole. This document allows spouses and older eligible children, who might not otherwise be eligible to work, to accept employment and also authorizes international travel without the need to apply for a new visa stamp at a U.S. Embassy/Consulate abroad. Second, the filing of an application can be advantageous for older dependent children approaching their 21st birthday since under the Child Status Protection Act (CSPA), these dependents can be afforded additional time to obtain a green card through a parent, even after the 21st birthday when they might otherwise lose eligibility to be considered a qualifying dependent. Third, the filing of an I-485 application brings greater flexibility in terms of job portability. An individual can become portable, meaning eligible to bring or “port” their green card case to a new role, location or employer once an AOS has been filed and pending for more than 180 days so long as the jobs are in “the same or similar occupational classification.” This can benefit both the employer and the beneficiary as it allows for greater job flexibility for the beneficiary to move to another role within the organization without compromising the green card process. (It also gives the employee the ability to move to a different employer while maintaining the green card process.)
Where a filing by the end of the month is not possible, employers should carefully monitor their employees’ underlying nonimmigrant work status (e.g. H-1B status) to ensure it remains valid at all times and may consider speaking to employees with older dependent children about the potential impact of this change. For those impacted by the retrogression, the future timing of an I-485 submission is uncertain and employers should proceed accordingly. Employers may, for example, want to revisit their policy on reimbursement of the costs of obtaining the required medical examination so as not to incur unnecessary costs since medical examination results can expire. Finally, employers should understand that if an AOS application is filed and the beneficiary’s priority date then retrogresses, the case will be held in abeyance and immigration may transfer the case or not take further action until the priority date once again becomes current. This knowledge can help set appropriate expectations with employees.