Social networks are abuzz with news that the “green card” waiting line has moved ahead substantially. For some categories, the difference is years! What does the latest update from the Department of State (DOS) mean for immigrants and their employers?
Green Card Allotment
The number of “green cards” granted each year is limited by law. They are divided up into categories based on the type of sponsorship (family or employment) and other factors within those categories, and also divided by country (7% per country).
If more people apply than visas are available, a waiting line develops.
If not all of the allotment is used in a fiscal year (October 1 to September 30), they can be used the following year.
DOS is charged with managing the waiting lines and releases the Visa Bulletin detailing these waiting lines each month. The waiting lines are based on an assessment of demand against the supply of green cards available.
Recently, DOS began issuing two charts: Final Action Dates and Dates for Filing. The Final Action Dates show the actual waiting line for that month. The Dates for Filing show what DOS expects to be available in the coming months to help manage the workload.
Adjustment of Status v. Consular Processing
At its creation, U.S. immigration law assumed that most people would enter with an immigrant visa from outside the U.S. and be issued the green card once they entered, a process known as consular processing. This is why the DOS is in charge of the waiting line.
Because the processing times and waiting lines have lengthened the process to get a green card, many people are in the U.S., especially in the employment-based categories, and already working while they wait to immigrate.
These individuals do not usually have to go outside the U.S. to consular process. They can instead adjust their status inside the U.S. through filing with the U.S. Citizenship & Immigration Service (USCIS).
USCIS uses the Final Action Dates published by DOS for granting green cards. However, they can choose to use either the Final Action Dates or the Dates for Filing for allowing a person here to file an adjustment of status application. They publish adjustment of status dates online each month after the Visa Bulletin is published.
Why the big jump?
Because of COVID-19 and the resulting Presidential Proclamations severely restricting immigration, fiscal year 2020 is ending with a large surplus of visas – perhaps the most ever carried over. When these were incorporated into the October 2020 numbers (the start of the new government fiscal year), it resulted in a big jump forward, in some cases 2-3 years, especially for India and China, which have had chronic waiting lines lasting many years.
Note that the Final Action Dates for October, for India and China especially, are well behind the Dates for Filing. This is because (as noted toward the end of the Visa Bulletin) the Department of State predicts forward movement (mostly rapid) in those categories through January 2021.
What do those dates mean?
The date (called priority dates) is assigned when a person’s application is filed with USCIS for most categories. For employment-based applications, it may instead be when the pre-application is filed with the Department of Labor (the PERM or labor certification filing).
People often can keep their initial priority date if they have multiple applications filed.
Filing Adjustment of Status
Immigration from outside the U.S. is still mostly suspended per the Presidential Proclamation. However, the adjustment of status inside the U.S. is not affected. People whose priority dates are current based on the USCIS’s October chart can file their adjustment of status applications in October if they qualify.
To qualify, a person must be physically present in the U.S. with a valid immigration status. Employment-based applicants must not have had more than 180 days of status violation or time out of status in the past. Status violations or time out of status for other applications are usually not allowed, even if a valid temporary status has been regained. This is a complex area and specific advice is needed if a past status violation occurred.
Additionally, the job or relationship that formed the basis of the application for the green card must still exist in most cases. If a person has changed jobs or if the family-based relationship no longer exits, specific advice is needed. If a future job was the basis of the green card application, that job still must be available and ready to be occupied when the green card is finally granted.
“Downgrading” to EB3
For October, the employment-based third category (EB3) is ahead of the employment-based second category (EB2) for India and China. Most people in the EB2 category will qualify to file EB3 but a new I-140 will be required. This would allow the filing of a concurrent adjustment of status application.
However, if the situation flips, and EB2 progresses beyond EB3, changing the I-140 to which the adjustment of status is attached is difficult. Specific advice is needed to decide whether to downgrade.
Family Members Included
Spouses and children under 21 can also apply for employment-based applications and some family-based applications. Again, this determination can be complex and requires specific advice, especially if a child has recently reached age 21.
Other considerations in filing include the new requirement to pay for employment authorization and travel documents separately, green card portability (the ability to change jobs and still continue the process), and whether to file the medical exam with the application.
Additionally, the new form I-944 to show financial self-sufficiency will be required starting October 13, 2020. If not filed with the adjustment of status application before October 13, 2020, USCIS will request it later.
Filing the adjustment of status is only the first step in the final process to receive the green card. Biometrics (fingerprints and photographs) must be collected, the application reviewed, and in some cases an in-person interview conducted. The Visa Bulletin may move backward as well as forward, so it is impossible to predict the time until an actual green card is issued.
For those with an adjustment of status already pending, USCIS will pull the case off the shelves based on the Visa Bulletin. If additional evidence is needed or if biometrics have expired, then they will send these requests. These items cannot be interfiled at this time.
If you have a priority date within the October adjustment of status filing dates, you should contact your attorney to start the process as soon as possible.