Seguritan US Immigration Articles

Filing for Adjustment Even if Visa Not Immediately Available

This October which is the start of fiscal year 2017, adjustment of status applications may be filed even if a visa number is not immediately available for the priority date of the applicant. The date of filing the application rather than the date when a visa number is available determines when to file.

This is good news to those who have been waiting for a long time for their priority dates to become current. A pending adjustment application entitles the applicant to work authorization and travel permit.

Every year, there is a limit to the number of immigrant visas issued to various visa categories except those that do not need to be on the wait list like immediate relatives of US citizens since an immigrant visa is always available to them.

Family-based immigrant visas are capped at 226,000 and employment-based immigrant visas are capped at 140,000 annually. The United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS) have established a guide to let applicants know when visa numbers will be available for their particular category.

As a guide, the DOS releases a visa bulletin every month. This lists the availability of immigrant visa numbers and likewise shows the backlogs in each category for a given month. The visa bulletin also shows when an application for adjustment of status (green card application) can be filed.

Up until last year, an application for adjustment of status could only be filed if the visa petitioner’s priority date was earlier than the cut-off date in a particular category. A priority date is generally the date when a relative or employer filed an immigrant visa petition on behalf of the beneficiary.

Starting in October 2015, the visa bulletin has adopted two charts per visa preference category— the Final Action Dates and the Dates for Filing Applications. Essentially, the Final Action Dates indicate when a visa is immediately available and the Dates for Filing Applications are the earliest dates when applicants may be able to apply. For purposes of adjustment of status application, the USCIS said that it will announce every month which of these two charts will be used to determine when application to adjust status may be submitted.

Ever since the start of this new revision, USCIS has used the Final Action Dates to indicate when foreign nationals can submit their application to adjust status (green card application). The Dates for Filing Applications have been used only to notify applicants as to when they can start assembling their documents for submission to the National Visa Center (NVC).

However, for the first month of the new fiscal year the USCIS has announced that adjustment applicants must use the Dates for Filing Applications. This means that they can file for adjustment without waiting for the availability of visa numbers.

If their priority date is earlier than the cut-off date in the chart for Dates of Filing Applications they may file for adjustment of status. For employment-based visa categories, EB-1 is now current worldwide. EB-2 is also current worldwide except for China and India. EB-3 is also current worldwide although the Philippines remains oversubscribed. For the Philippines, EB-3 shows a cut-off date of Sept. 1, 2013 which is about 34 months ahead of the Final Action Date.

For the family-based visa preference, the cut-off date for F1 for the Philippines is May 1, 2006; F2A is November 22, 2015 and F2B is February 1, 2007. The cut-off date for the F3 is January 1, 1995 and for the F4, it is April 1, 1994.

 

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