Immigrantly

Immigration thoughts from an Immigration Lawyer.

Potential Benefits of the New Visa Bulletin – Good News for Green Card Applicants!

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The Visa Bulletin updated every month by the Department of State is an indication of how much longer a Green Card applicant must wait until he can get his green card. Starting from the October 2015 Visa Bulletin, the structure of the Visa Bulletin has changed in a few ways. These changes are great news for those who have a long waiting period, since they can now file I-485 much earlier, which potentially means that they can get their Employment Authorization Document (work permit) and Advance Parole (travel document) much earlier. The new changes will also enable some applicants to continue to stay and work in the U.S., who would have otherwise had to leave the U.S. and wait in their home countries. 

Changes

The new Visa Bulletin introduced the following two charts for both the Family-based applicants and the Employment-based applicants. The way to read those charts are the same as previous ones. For how to read the charts, please see “Understanding the Visa Bulletin and When Your Priority Date Becomes Current.”

Chart A: Application Final Action Dates

This chart indicates the date the Green Card or Immigrant Visa (IV) can be issued.

Chart B: Dates for Filing Visa Applications

This chart indicates the date applicants can start the application process for an IV. What this means is that the National Visa Center will start sending Welcome Letter and Invoice(s), so that applicants can submit the documents for an earlier adjudication. This chart, however, only allows applicants to file the documents early, but not to receive an IV early. Applicants still need to see Chart A for when they can actually receive their IV.

Although this chart is designed specifically for IV applications, it may also be applied to Adjustment of Status (AOS) applications. For example, in the October 2015 Visa Bulletin, right above the chart, it states: “USCIS has determined that this chart may be used (in lieu of the [Application Final Action Dates chart]) this month for filing applications for adjustment of status with USCIS.” This Chart B along with this language brings various benefits to Green Card applicants.

Potential Benefits

The following benefits are “potential” because these benefits should be the results of this changed Visa Bulletin based on the current immigration laws, regulations and policies, but these benefits have not been confirmed by the USCIS. The USCIS may set some special rules or exceptions to the existing rules, and therefore limiting the following benefits.

Benefit #1: To all IV and AOS applicants

Under the old Visa Bulletin system, applicants had to wait until the visa number becomes available (or almost available in case of an IV application) before they can start the final process of the Green Card application, which by itself would take more than a few months at the least. Now with the new Visa Bulletin system, applicants can start the process earlier, therefore allowing them to receive the Green Card earlier.

Benefit #2: To all AOS applicants’ dependents 

The dependents of nonimmigrant visa holders are limited in their ability to seek employment in the U.S. For example, children (under 21) are usually not allowed to work. Dependents of H1B or O1 visa holders are not allowed to work. Although a recent change in policy enabled some H4 (dependents of H1B) holders to work, it is still very limited. With the new Visa Bulletin system, those dependents can receive their Employment Authorization Document (EAD) and work in the U.S. while they wait for their Green Card approvals, which sometimes takes years.

Benefit #3: To AOS applicants who is about to lose legal status in the U.S.

Some applicants currently hold a work visa that cannot be extended beyond its maximum period (e.g. L1). And those applicants may not qualify for any other categories of visa. In that case, they must return to their country after their visa expires, and have to go through the Consular Processing. With the new Visa Bulletin system, they may file I-485 much earlier, thus receive their EAD and AP before their visa expires. This means they can continue to live and work in the U.S. while they wait for their Green Card.

Benefit #4: To AOS applicants who want to work for a different employer or start their own companies

For some applicants who have a long waiting period (e.g. Indian and Chinese – more than 5 years), waiting for their green card approval often means that they are stuck with one employer – the petitioner. Although it is possible to change an employer, it is troublesome. With the new Visa Bulletin System, they may use their EAD to work for different employers or even start their own businesses after the I-485 application has been pending for more than 180 days. This is so called the “portability” rule.

Benefit #5: To child applicants who are about to “age-out” 

“Age-out” happens when a child of a principal Green Card applicant turns 21 years old before receiving the green card, and lose the “child” status and therefore the eligibility for a green card. This can happen in both Family-based and Employment-based applications. However, the children can freeze their age once they “sought to acquire” permanent resident status, which typically means filing for I-485 or DS-260. Therefore, with the new Visa Bulletin system, more children can file I-485 or DS-260 before they turn 21, which means they can freeze their age and keep their eligibility after they turn 21.

Questions Remained

The Department of State published this new Visa Bulletin without much explanation about the effects of the changes. Therefore, there are still questions to be answered by the Department of State and/or the USCIS. Some main questions and concerns are:

  • Will the above-mentioned benefits really apply to all the Green Card applicants?
  • When and how should an applicant submit a police report and/or medical examination results (which expire in 6 months or 1 year)?
  • Will the dates on the charts change after the Visa Bulletin for a particular month has been published, just as what happened in late September for the October 2015 Visa Bulletin?

Stay tuned for updates when the Department of State and/or USCIS announces more details about this change.

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