United States: Employment-Based Immigrant Visa Availability—When To File To Adjust Status To Permanent Resident?

Last Updated: October 4 2018
Article by Lisa D. Duran

The Immigration and Nationality Act ("INA") sets forth preference classes to which the yearly allotment of 140,000 employment-based immigrant visas (or "green cards") are allocated. A new yearly allotment of employment-based immigrant visas becomes available on October 1 of each year, the first day of the federal government's fiscal year. The yearly allotment of immigrant visas is allocated on a per preference class, per country basis. Thus, foreign nationals from countries where the demand for employment-based immigrant visas is higher than the supply, specifically India, China and the Philippines, wait in line for many years to file the last step in the permanent residence process, their I-485 Applications to Adjust Status.

A foreign national's place in the waiting line is determined by the foreign national's "priority date," defined as the date that the foreign national's employer filed its labor certification application on the foreign national's behalf, or where a labor certification application is not required, the date that the foreign national's employer filed its I-140 Immigration Petition for Alien Workers on the foreign national's behalf. When the foreign national's priority date is "current" by reference to the dates listed in the Department of State's ("DOS") monthly Visa Bulletin, the foreign national and the foreign national's spouse and minor children may file their I-485 Applications to Adjust Status to permanent residents.

Most employers file permanent residence cases on behalf of foreign national employees in the employment-based second ("EB-2") or employment-based third ("EB-3") preference classes. The EB-2 classification is for "member[s] of the professions holding an advanced degree" or "alien[s] of exceptional ability." The EB-3 classification is for professionals (with a bachelor's degree and less than five years of experience), "skilled workers" (with at least two years of specialized training or experience), and "other workers" (with less than two years of training or experience). As a result, historically, immigrant visa availability in the EB-2 and EB-3 classifications has been backlogged or "oversubscribed" (in Visa Bulletin terms) for people from India, China and the Philippines. As a result, increasingly, petitions for foreign nationals from these backlogged countries are being filed in the employment-based first ("EB-1") preference classification, which has tended not to be backlogged historically. Employment-based permanent residence cases in the EB-1 classification do not require labor certification. The EB-1 classification is for "Aliens of Extraordinary Ability," "Outstanding Researchers and Professors," and "Multi-National Executives/Managers."

As a result of the EB-1 filing trend, in the last few years, the EB-1 classification for people from India and China has become backlogged three to four months preceding October 1, clearing on October 1 when the new yearly allotment of employment-based immigrant visas became available. However, this August, the EB-1 classification became backlogged worldwide. A copy of the August 2018 Visa Bulletin is available here: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2018/visa-bulletin-for-august-2018.html This means that while I-140 petitions may be filed in the EB-1 classification, the beneficiaries of those petitions may not file their I-485 Applications concurrently with the I-140 petitions, and beneficiaries who have already filed their I-485 Applications will not receive their green cards until their priority dates are current.

The recently released October 2018 Visa Bulletin confirms that the worldwide backlog in immigrant visa availability in the EB-1 classification will continue after October 1, 2018. A copy of the October 2018 Visa Bulletin is available here: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-october-2018.html The "Final Action Dates" chart in the October 2018 Visa Bulletin reflects that for countries other than India and China, immigrant visas are available for people in the EB-1 classification with priority dates prior to April 1, 2017.

However, there is some good news. On September 14, 2018, United States Citizenship and Immigration Services ("USCIS") announced that applicants for adjustment of status should refer to the "Dates for Filing" Chart in the October 2018 Visa Bulletin to determine when their priority dates are current. This is one of only a few times that USCIS has authorized the use of the "Dates for Filing" charts since the "Dates for Filing" charts appeared in the October 2015 Visa Bulletin. According to the employment-based "Dates for Filing" chart in the October 2018 Visa Bulletin, for countries other than India and China, foreign nationals in the EB-1 classification with priority dates prior to June 1, 2018 may file their I-485 applications. That is fifteen months earlier than the date on the "Final Action Dates" chart.

USCIS' authorization to use the "Dates of Filing" chart in the October 2018 Visa Bulletin may also benefit foreign nationals in other employment-based classifications. For example, the October 2018 "Dates of Filing" chart allows people from China in the EB-2 classification with priority dates before June 15, 2015 to file their I-485 applications, two months earlier than the date listed in the "Final Action Dates" chart.

Since the "Dates for Filing" charts appeared in the October 2015 Visa Bulletin, the Visa Bulletin has explained that when USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will direct I-485 applicants to use the "Dates for Filing" charts at https://www.uscis.gov/visabulletininfo. On September 14, 2018, USCIS did so for the first time. Accordingly, when determining when their employees may file their I-485 applications, employers should be sure to refer to that USCIS site.

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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