On September 9, 2015, the Department of State and Department of Homeland Security, acting through United States Citizenship and Immigration Services, announced that they were significantly revising Visa Bulletin procedures. The Visa Bulletin is the monthly bulletin issued by the Department of State that determines whether a particular foreign national is eligible to file their “green card” in a particular month. This change is effective October 1, 2015, and will provide foreign nationals and businesses with more stability as they forecast their immigration budgets. It will also result in increased portability of foreign nationals waiting for their green cards.

What is the Visa Bulletin?

The Visa Bulletin is a system utilized by the Department of State to manage the flow of “green cards” (also known as U.S. permanent resident cards/visas). The issuance of permanent resident visas has been subject to country quotas under the Immigration and Nationality Act for several decades. The monthly Visa Bulletin provides a chart of cut-off dates in each of the permanent residence preference categories. Foreign nationals with “priority dates” established before the cut-off date for a given month are eligible to file their permanent residence/green card applications in a particular month. The priority date represents the date that the person’s permanent residency process kicks off and is generally the date that a labor certification (Form ETA 9089) or an I-140 immigrant visa petition is filed, whichever comes first.

Several employment-based permanent residence categories for nationals of India, China, and the Philippines have been “oversubscribed” for many years due to excess demand. It has not been uncommon for nationals of some of these countries to wait up to a decade for their green cards, notwithstanding securing most of the necessary approvals from U.S. immigration agencies.

The Department of State’s difficulties in forecasting demand for these visas has also resulted in extremely unpredictable changes to the Visa Bulletin. For example, from month to month, significant retrogression (backward movement in the Visa Bulletin) of the cut-off date has been quite common, leading to unpredictability for both businesses and individuals seeking permanent residence.

What Prompted this Change?

In November 2014, President Obama announced that he would use his executive authority to make significant changes to the immigration system due to Congress’s failure to pass a comprehensive immigration reform bill. One of these changes that he forecasted was optimizing the allocation of green cards. While only Congress has the authority to increase country quotas, the Department of State was not making optimal use of available visa numbers. Modernizing the Visa Bulletin is a significant step towards ensuring that all available visa numbers are allocated and is consistent with the President’s announcement.

What Does this Change Accomplish?

Currently, the monthly Visa Bulletin contains a single chart of cut-off dates for different permanent residency categories that determined whether or not individuals were eligible to file their “green card” applications based on the priority date. The new Visa Bulletin (effective in October) will now contain two charts:

• Application Final Action Dates for Employment-Based Preference Cases
• Dates for filing of Employment-Based Visa Applications

The first chart (“Application Final Action Dates”) will continue to provide cut off dates as currently provided in the Visa Bulletin monthly chart. The second, newer chart provides the date governing when applicants can expect to file their permanent residence applications. The differentials between the dates in these two charts illustrate their significance:

1. 2+ year differential between EB-2 China dates
2. 6 + year differential for EB-2 India
3. ~2 year differential for EB-3 China
4. ~1.5 years for EB-3 India
5. 8 years for EB-3 Philippines

These charts provide key guidance for employers and employees on when to reasonably expect to file these applications, which are the last step in a lengthy process of securing U.S. legal permanent residence. Additionally, by helping to streamline the Immigrant Visa/Green Card application process, this change is expected to assist the U.S. immigration agencies to ensure that all visa numbers allocated by Congress are fully utilized.

Why Does this Change Matter?

The reform of the Visa Bulletin is significant for many reasons.

First, this change will help businesses and individuals better predict the availability of visa numbers and benefit from more stability. Although the second chart may experience some retrogression, it is expected to remain more stable than the currently provided cut-off date chart. Greater stability and predictability will help individuals more effectively plan their futures and help businesses budget their immigration costs more effectively.

Second, this rule change will promote portability. Existing regulations permit green card applicants to preserve their green card application if they port their employment to the “same or similar” occupational classification 180 days or more after filing their green card application, even if they move to a different employer. Employees moving to a new position before filing their green card applications risked abandoning the green card process and requiring a new process with a different employer.

Third, this rule change could help businesses with a large number of workers on temporary visas. The filing of an “adjustment of status” application (whereby a foreign national in the United States seeks to become a permanent resident through application to U.S. Citizenship and Immigration Services) also permits the applicant to concurrently seek work and travel authorization from the USCIS. Such work authorization provides an individual with authorization for employment in the United States separate and apart from any temporary nonimmigrant status. An employer, in collaboration with a foreign national applicant for adjustment of status, may consider whether it would be advisable to rely upon this separate grant of work authorization rather than renewing the person’s temporary status in the future. But, any such decision should be made with careful consideration of the consequences, since maintaining temporary status during this process is generally recommended so as to ensure that a person does not lose legal status in the United States if the application for adjustment of status is denied.

Conclusion

We recommend that employers who have employees in the green card process immediately determine whether their employees may be eligible to file their permanent resident applications under the new Visa Bulletin guidance.