October Visa Bulletin Effective as USCIS Honors Dates of Filing

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The October 2020 Visa Bulletin takes effect today.  The Bulletin shows rapid advancement in priority dates for both final action dates and dates for filing  in the employment-based  (EB) preference categories, with the exception of EB-5.  Significantly, USCIS indicates that it will follow the Visa Bulletin’s dates for filing in the employment-based categories. This means that numerous employment-sponsored foreign nationals, many of whom have been waiting years, are eligible to file their I-485, adjustment of status (“green card”) applications in October.

Employment-Based Priority Date Summary

The October priority date advancement most significantly impacts Indian and Chinese nationals subject to long backlogs.  Individuals  in a category that is “current” as well as  individuals who have a priority date before the cut-off date listed under dates for filing on the Visa Bulletin may file an adjustment of status/green card application this month.

EB-1, First Preference Category

  • Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) is current in October.
  • India and China:   The cut-off date for filing is September 1, 2020.

EB-2, Second Preference Category

  • Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) remains current in October.
  • China: The cut-off date for filing is October 1, 2016.
  • India:  The cut-off date for filing is May 15, 2011.

EB-3, Third Preference Category

  • Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) (including EB-3 Other Workers) becomes current in October.
  • EB-3 China’s cut-off date for filing is June 1, 2018.   EB-3 China Other Workers’ cut-off date for filing is October 1, 2008.
  • EB-3 India’s (and EB-3 India Other Workers’) cut-off date for filing is January 1, 2015.

While  individuals with a priority date that is a current or before the published cut-off date may file an adjustment of status application based on the dates outlined above, an individual’s  green card application may not be approved until the priority date is available under the final action dates posted on the Visa Bulletin.  These dates may differ significantly depending on the preference category and country of birth.

Background

The rapid advancement in the employment-based priority dates reflects the impact of travel bans and consular closures in fiscal year (FY) 2020.  In particular, Presidential Proclamation 10014 (PP 10014), banning admission of certain immigrants, meant that many family-based immigrants were unable to obtain their immigrant visas in FY 2020. By statute, the unused family-based numbers from FY 2020 have been added to the FY 2021 employment-based visa allocation.  In this first month of FY 2021, a record number of immigrant visas are available in most of the  employment-based categories.

What  Should Employers Expect?  

Employers should work with immigration counsel to identify  foreign nationals who are eligible to file adjustment of status applications this month.  Quick action to initiate cases is critical, as these applications require significant documentation, including  documentation required under the recently reinstated Public Charge provisions.

The Department of State has projected that advancement in employment-based priority dates will continue through January 2021. However, this will be subject to fluctuations in applicant demand and the government’s ability to process applications.   The November Visa Bulletin will be published later in October, and will give some insight into whether the advancement is sustained.  We must also wait and see if USICS will honor filing dates next month, or if it will instead revert to following final action dates, which are less favorable.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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