United States: Immigrant Visa Processing Changes – Dates Of Filing vs Final Action Date Significantly Impacts EB2 And EB3 India And China – Visa Office On Priority Dates, Demand, And Predictions

Last Updated: September 21 2015
Article by Alka Bahal

In our continuing series of reports, Charles ("Charlie") Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers' Association).

This month, before we move into Charlie's comments and analysis of current trends and future projections for the various immigrant preference categories, we'd like to provide you with an overview of the changes introduced with the October 2015 Visa Bulletin.

The release of the October 2015 Visa Bulletin represents an historical shift in how the State Department presents data regarding the availability of immigrant visa numbers. The October Bulletin, and all Bulletins going forward, now lists important dates for both the family and employment based immigrant visa applicants:

(1) the "Final Action Dates" chart, which is the date when DOS or USCIS may render a final decision on the applications (i.e. approve the grant of permanent residency because an immigrant visa number is available).  This chart contains the same "cut-off" data that has historically been published in the Visa Bulletin.

(2) the "Dates for Filing" chart, which is the date upon which individuals may file their permanent residence applications (Adjustment of Status).

As part of the Obama Administration's Visa Modernization Proposal, the State Department is now publishing the "qualifying dates" within the newly named "Dates for Filing" chart. Other than the publication of these dates in the Visa Bulletin, the Department of State/NVC process for issuing "agent of choice" letters has not changed.

The "qualifying dates" or "dates of filing" is representative of the demand, based on the information available at the time of the determination, that the State Department anticipates will be available for that particular preference category and country of chargeability at some point in the upcoming 8 to 12 months. The purpose of setting "qualifying dates" has been to elicit from applicants the necessary information and documents for their immigrant visa applications to be considered "documentarily qualified" or ready to adjudicate once their priority date is reached. Once the priority date for a documentarily qualified case becomes current (i.e., is earlier than the "final action date"), the immigrant visa interview can be scheduled (or the application may be approved, if no interview is required). In general, USCIS will continue to follow the "Final Action Date" chart for the acceptance of adjustment of status applications. However, if USCIS determines that there are additional visas available it may exercise its discretion to accept adjustment of status applications in accordance with the "Dates for Filing" chart. Each month, the Visa Bulletin will indicate whether USCIS will accept adjustment applications during the upcoming month in accordance with the "Dates for Filing" chart. For the month of October, USCIS has agreed to permit both family- and employment-based immigrants to use the "Dates for Filing" chart to file adjustment of status applications. Thus, individuals who have a priority date earlier than the "Filing Date" cut-off for the month of October may submit an adjustment of status application in October.  In the future, applicants should refer to USCIS' site to determine when to file for adjustment of status.

Below are highlights from the most recent "check-in with Charlie" (September 14, 2015), reflecting his analysis of current trends and future projections for the various immigrant preference categories as well as his insights on the new "dates for filing" chart.

QUESTION 1: What Is the Anticipated Impact of the Addition of "Dates for Filing" to the Visa Bulletin?

Until now, the Visa Office had limited visibility into the employment-based demand for immigrant visas primarily being processed by USCIS. Though the Visa Office made educated estimates as to future demand, since these predictions were based on limited information (e.g., historical patterns, demand filed prior to subsequent retrogression of dates), unanticipated surges in demand would sometimes arise. As a result, cut-off dates in the employment-based categories have been vulnerable to fluctuation, often advancing significantly, then suddenly stopping, retrogressing, or becoming unavailable with little to no warning.

The State Department anticipates that as USCIS begins to accept adjustment applications based on the "Dates for Filing," it will eventually have better information regarding overall immigrant visa demand. When USCIS receives an I-485 case, it pre-adjudicates the case and requests a visa number from the State Department. If the "Final Action Date" is current, the State Department will authorize an immigrant visa number and USCIS will approve the case and proceed with production of the permanent resident card. If the "Final Action Date" is not current, the State Department will be unable to authorize a visa number and the case is placed in the Visa Office's "pending demand file." The data maintained in the pending demand file data enables Charlie to better assess demand and move the "Final Action Dates" at a more reasonable and predictable pace over time. Based on published USCIS processing times it takes approximately six months for these cases to be received and pre-adjudicated by USCIS, so Charlie expects that he will have a better sense of overall employment-based immigrant visa demand at USCIS starting in the spring of 2016.

QUESTION 2: How will the "Dates for Filing" Change?

Charlie will determine the need for changes to the various "Dates for Filing" at the same time he is making the determination of the upcoming month's cut-off dates. They will generally remain the same or may move forward slightly throughout the fiscal year.

QUESTION 3: Will Adding "Dates for Filing" to the Visa Bulletin Negatively Impact the "Final Action Dates"?

Although some members have expressed concerns that the addition of the "Dates for Filing" might negatively impact "Final Action Dates," Charlie assures us that is not the case. The "Final Action Dates" listed in the October Visa Bulletin are conservative while he sees the time impact of recent changes in the dates, and they are not expected to retrogress in the foreseeable future, or without prior warning. Instead, USCIS allowing I-485 submission based upon the "Dates for Filing" will provide much needed visibility into USCIS demand which will ultimately result in more predictable and steady movement of the "Final Action Dates." For example, earlier this year, the lack of visibility into demand initially resulted in the rapid forward movement of the cut-off date for EB-2 China in an effort to generated number use within the annual limit, which then abruptly rolled-back when demand materialized at a much higher rate than could have been anticipated. This "whiplash" phenomenon is likely to cease to occur once the new system is implemented and more reliable employment-based visa demand data is available to the State Department when determining Final Action dates.

You may access the September 2015 Visa Bulletin here and the October 2015 Visa Bulletin here.

http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-september-2015.html

http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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