Visa Bulletin Fakeout - Sign the Petition

Words cannot express how frustrated I am with the Department of Homeland Security and the Department of State.  Just weeks after announcing a "visa modernization" improvement with two visa priority date charts, which I blogged about as a positive improvement, the DOS has yanked back the priority dates for those eligible to apply for green cards by two (2) years!  What that means is that families, not just hundreds but thousands of families, who had hopes to apply for a green card in October, and who have worked diligently over the past weeks to collect documents, get medical exams, pay immigration lawyers like me, are suddenly with only a few days notice having their hopes and dreams dashed by what appears to be a government mixup.  But far and away the most frustrating thing is that this very thing happened before.  In 2007, the State Department moved all dates to "current" status, then before the month in which they would accept applications came, they yanked the dates back.  At that time, a class action lawsuit was prepared, and a "flowers campaign" started by Indian immigrants who sent flowers to the agency asking for help and sympathy.  This was referred to in the Times of India as a Gandhigiri, a peaceful act of protest.  The agency responded by allowing the filings to occur within a 30 day period.  So the protest and public outrage was a success in 2007.

I can understand that people make mistakes.  I have made some myself.  But the agency must own up to this mistake, and allow those who have relied upon their earlier published visa bulletin to file within a short 30 day window.  For this, someone has started a White House Petition.  I was among the first to sign it, and I hope others will do so as well:

Obama Visa Modernization - Visa Bulletin Just Got Better

As part of President Obama's Executive Action announced November 2014, the gate that opens and closes the door to liberty just received two doors - one for those who can apply for green cards and a separate door for those who can be approved.  Until now, the visa bulletin, which summarizes the dates of available priority dates for those with approved immigrant petitions, has only had one list of dates, both for those who can apply and those who can be approved.  This has created difficulties that are far too complex to describe here, but suffice it to say that it was a poorly conceived process which held back those who could file for adjustment of status.  Now there are two different dates to consult - one list is for "Application Final Action Dates" which is for those who can be approved for the green card, and one is for "Dates for Filing Applications" which is for those who can file for adjustment of status, and then remain pending until the Final Action Date is reached.  This new system appears to allow immigrants to file for adjustment sooner than they would otherwise have been able to do, which has a variety of positive implications.  First, dependents who might otherwise "age out" by turning 21 may be able to preserve status by filing for adjustment of status within one year of the visa availability date.  Second, those who are in other visa categories which do not allow extension of status beyond the limits of the visa (such as L-1B) may be able to avoid having to get an H-1B because dates for filing may come current for them sooner, allowing them to apply to adjust status.  Upon the filing of an adjustment of status application, each applicant is allowed to apply for work and travel permits, which may reduce the need for extension of nonimmigrant status sooner.

As an example, effective October 1, 2015, Indian born applicants in the Employment Based Second (EB-2) category (EB-2 India) will have a Final Action date of May 1, 2005, which means that if their Priority Date (the date the PERM Labor Certification was filed, which is then assigned to the I-140 Immigrant petition) is on or before May 1, 2005, they can be approved for permanent resident status.  In the old system, that would also be the date the USCIS would accept for adjustment of status filings.  But with the new visa bulletin, the Dates for Filing shows EB-2 India at July 1, 2011, which is six (6) years later than the Final Action date.  This means that those EB-2 India applicants whose priority dates fall on or before July 1, 2011 can file adjustment of status applications as of October 1, 2015, even if they can't yet be approved for the status.  Their cases can remain pending adjustment of status until the Final Action date moves forward to their priority date.  This is great news for many families.

What is unclear as of this writing is whether the 3 year extensions of H-1B status beyond the 6 year maximum may be negatively impacted.  Such extensions, allowed under the AC21 law, depend on a visa date not being immediately available.  It is not clear whether the agency will use the Final Application Date or the Application Date to determine whether a visa number is available for use.  

Overall, this is a very positive change to the system, and represents a true executive modernization of the visa system, without having to resort to the gridlocked Congress.