The Revised Visa Bulletin: Tempering Your Expectations
The debate around comprehensive immigration reform has long had many detractors decrying earned legalization as “amnesty” for people who should instead head “to the back of the line.”
What is little understood is exactly what is meant by “the line;” who is eligible to wait in it; and how infinitely long this line can be. Surprising to many is the fact that not every intending immigrant can simply jump into the line. Currently, aside from certain humanitarian-based cases such as asylum, U Visas or Temporary Protected Status, immigration status is largely limited to those applicants who can be sponsored by certain family members or apply through an employment-based visa. Without a qualifying family relationship to a US citizen or a Lawful Permanent Resident, many immigrants are cut out of the line completely.
The immigration law prescribes the number of immigrant visas that may be issued to foreign nationals seeking to become lawful permanent residents (i.e., receive their “green card”) each year. For example, the law caps the number of family-sponsored visas to 226,000 per year and the number of employment-based visas to 140,000 per year. Importantly, certain classes of applicants are not subject to this cap by virtue of their special status as an “immediate relative.” Immediate relatives include the following:
- Spouses of US citizens,
- Children (unmarried and under age 21) of US citizens,
- Parents of US citizens, if the US citizen is at least 21 years old,
- Spouses of abusive US citizens who have an approved I-360 self-petition under VAWA, and,
- Widows or widowers of US citizens if the US citizen filed a petition before his or her death or the widow(er) files a petition within 2 years of the citizen’s death.
However, family members not falling into these special “immediate relative” categories often wait many years after an immigration petition is filed on their behalf because they are subject to quotas that depend on their country of origin and their relationship to the family member who is petitioning for them. This system of quotas is essentially what constitutes “the line” and the formal name for the system that determines who is at the front of the line is the “Visa Bulletin.” The Visa Bulletin is published online each month by the Department of State (DOS) and is updated depending on the availability of visas available for each category.
To illustrate how the system works, if a Mexican national was the beneficiary of an immigrant petition filed on his behalf by his US citizen sister, he would fall under preference category F4. To check whether or not he could finally apply for his lawful permanent residence, this Mexican national would consult the visa bulletin to see which “priority date” the DOS was requiring in order to seek an immigrant visa or adjustment of status. The priority date is usually the date that the family petition was filed with US Citizenship and Immigration Services (USCIS). Thus, if under the Visa Bulletin chart for Mexico and F4 it listed a priority date of 01APR97, the Mexican national’s immigrant petition had to have been filed prior to April 1, 1997 for him to be eligible to apply for his permanent residence. This nearly two decade waiting period is not unusual and in fact is representative of the amount of time that many intending immigrants must dutifully “wait in line” to be reunited with their family members in the United States or to be able to file for permanent residence through adjustment of status.
In November of 2014, President Obama announced a series of executive actions around immigration that he intended to take, including modernizing the visa system. While a true fix to the long line (ie, larger visa allotments) is something that only can Congress can do, many advocates were hopeful that this modernization would simplify the process for those standing in line. What resulted from these attempts to modernize the system is a mixed bag, with some pluses and some minuses. One thing seems clear: the new system may be modern and may allow the DOS and USCIS to better anticipate how many visas will be sought in a given month, but it is far from simple.
Now, instead of having one chart containing one set of priority dates, the Visa Bulletin has been bifurcated into two charts each for both employment and family-based cases: one that controls the date that an application can be filed, and a second chart that controls when “final action” can be taken on the case - in other words, when the immigrant visa or adjustment of status can be approved. One major problem occurred shortly after the DOS and USCIS issued this new format for the Visa Bulletin on September 9, 2015. This bulletin, which contained the “dates for filing” and “final action dates” for October of 2015 was initially met with great excitement because it provided new dates for filing for employment-based categories that that had been backlogged for years. Applicants under employment-based cases from India and the Philippines in particular rushed to prepare their permanent residence applications, only to have the government later dash their hopes when it issued a Revised Visa Bulletin on September 25, 2015. This revised Visa Bulletin rolled back the previously-available priority dates, rendering many applicants ineligible only four days before they were to file their applications on October 1st. This retrogression in the October 2015 Visa Bulletin was a bait and switch for many immigrants who had invested their money and hopes and had made life plans in reliance on the originally released priority dates. Affected parties filed a class action lawsuit, and the outcome of this case is anticipated later in 2016.
Meanwhile, how does this revised dual-chart Visa Bulletin impact immigrants who are waiting in line until their priority date becomes current? This depends on whether they are in their home country waiting for their immigrant visa, or whether they are already present in the United States and waiting for the opportunity to adjust their status to permanent residence. For applicants waiting in their home countries, the new Visa Bulletin requires applicants to pay for, assemble and submit their visa applications and supporting documents once their priority date is current with the “date for filing” that is being accepted. The fact that the actual visa interview and subsequent visa may not be issued for at least another year results in inevitable hassle for the applicant, because they will need to update their affidavit of support, police clearance letter, and other documents before a visa can be issued.
Applicants who are already present in the United States, however, may find some recompense for the hassle of having to update all of their documentation once they reach their “final action date.” This is because applicants who are in the United States are eligible to apply for an Employment Authorization Document (work permit) when they submit their Adjustment of Status application. Although they may need to wait at least a year for their “final action date” to become current so that they can be interviewed and granted permanent residence, they will in the meantime have employment authorization, and in some cases, advance parole authorizing them to travel and return to the US without problem. In these cases, the benefits of the Revised Visa Bulletin outweigh the hassle of duplicating efforts to update the application. One tip to consider: in these cases, USCIS advises that applicants wait to file their medical exam results (which are often costly and are only valid for one year) until USCIS requests them, instead of filing them with their permanent residence application.
Adding to the complexity of the new dual system, USCIS now recommends not only consulting the Visa Bulletin on the DOS website, but also USCIS’ own site, which will inform applicants whether they must use “final action dates” instead of the “dates for filing” when deciding when to file. In the month of February, 2016, for example, a check of www.uscis.gov/visabulletininfo reveals that employment-based applicants must use the “final action date” to determine when they can file, whereas family-based applicants must use the “dates for filing” to determine whether they can file their application.
At Wilson Law Group, we are happy to help you navigate the labyrinth of the Revised Visa Bulletin. We are happy to track your priority date going forward so that you apprised as soon as you are at the front of the line!