When Immigration Matters

The world has closely been watching the chaos that has ensued in implementing and staying President Trump's January Executive Order (the “Executive Order”) announced on January 27, 2017. As everyone knows, the Executive Order bars citizens of Iraq, Syria, Iran, Yemen, Somalia, Sudan and Libya from entering the United States for 90 days, suspends admission of refugees for 120 days and puts Syrian refugee admissions on hold indefinitely. In 2011, Obama’s State Department stopped processing Iraqi refugee requests for six months. I am constantly asked why is there outrage over President’s Trump’s Order but not President Obama’s Order?

Before we look at the merits of the Orders, the first glaring distinction between these Orders is that one was passed by Congress in 2011 with bipartisan support after discussion, revision and tremendous input from White House counsel. The other was drafted by Steve Miller with in-put by Steve Bannon and Trump himself--nobody else. It was not discussed with White House counsel, the Department of State or the Department of Homeland Security. Customs and Border Protection who was charged with implementing the order were only notified a few hours before implementation. 

As to the merits, Trump claims "My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months. The seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror."  Well are these Orders the same? On a very basic level, I must say yes. They both limit immigration into the United States in the interests of national security. But when you dig a little deeper and read the actual text there is nothing similar about them. 

President Obama’s suspension was in response to a failed attempt by two Iraqi citizens to send money and weapons to Al-Qaida. The Iraqi citizens lived in Bowling Green, Kentucky and entered the USA after lying about their past terrorist activities. The FBI arrested the two men for actions committed in Iraq and trying to assist foreign terrorist groups. Thankfully nobody was injured even though certain individuals in the Trump Administration have recently described this incident as the Bowling Green Massacre. 

President Trump’s ban is preemptive. While I agree, it is far better to be preemptive than to deal with the aftermaths of a terrorist attack, there must be a rational, constitutional basis for the Executive Order that does not discriminate based on religion. None of the refugees or immigrants from the seven countries targeted by the ban have been implicated in any fatal terrorist attack in the United States (although 2 non-deadly attacks implicate citizens of Somalia and Iran). In fact, the perpetrators of 911 came from Saudi Arabia, United Arab Emirates and Egypt. None of these countries are mentioned in the current President’s executive ban, which makes the argument that it is in the interest of national security very weak.  

While President Obama’s ban simply paused the processing of refugee visas for 6 months, President Trump’s Executive Order is a blanket ban. It denies entry to lawful permanent residents who have already been granted the right to live permanently in the USA. It also denies entry to dual citizens and those already issued visas to enter the USA. Further, it bars Syrian refugees indefinitely until President Trump (and nobody else) thinks it’s safe for them to be admitted to the United States. President Obama did not issue a blanket ban on visitors from the seven countries. He also did not retroactively prohibit admission to lawful permanent residents without due process. President Obama’s suspension was also limited to refugees. 

I also get told that the seven countries on the list were countries picked by the Obama administration not the Trump administration. What people are referring is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 signed into law by President Obama revising the visa waiver program. The visa waiver program allows citizens of certain countries entry to the USA without a visa for up to 90 days. Under the 2015 legislation, citizens of those 38 countries who had traveled to Iraq, Syria, Iran, and Sudan after March 2011 were no longer eligible for the visa waiver. Libya, Yemen, and Somalia were later added to the list. The 2015 Act also complicated the visa application process for citizens of those countries but did not prohibit them from entering the USA. 

President Trump’s order certainly differs from the December 2015 law in its scale. It violates commitments the USA has made under international law and quite frankly is imprudent policy which only bolsters the claims of Jihadist groups that the U.S. is waging a war on Islam. 

A quick fix for the Trump Administration is to withdraw the order and issue a new one that addresses its current pitfalls. If not, the United States Supreme Court will opine on the stay (spoiler alert-the Supreme Court does not like to hear cases where there is no final order in place) and then send the case back to the District Court for trial on its merits. That decision will again most likely be appealed to the Court of Appeals and then ultimately it will go back to the Supreme Court for review of the final order. That is a lot of time our President will be focusing on litigation instead of governing our country. 

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues.  She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

On February 21, 2017, DHS Secretary John Kelly released a pair of memos implementing President Trump's January 25, 2017, Executive Orders (EOs) on border and interior enforcement. What do these memoranda mean and what can you do if you or a relative are confronted by Immigration and Customs Enforcement in Expedited Removal?

Expedited removal is a procedure that allows the Department of Homeland Security (“DHS”) to remove a noncitizen from the United States without a hearing before an immigration judge or the Board of immigration Appeals. Where a noncitizen arrives at a port of entry and is inadmissible due to misrepresentations or false claims to U.S. Citizenship or does not possess valid documents for entry they are subject to expedited removal. 

To date, DHS has limited its application of expedited removal to noncitizens inadmissible for one of the above-stated grounds who either arrive at a port of entry or are apprehended within 14 days of their arrival and within 100 miles of an international land border.

Expedited removal may also occur if a person is apprehended at a place other than a port of entry and is admissible due to one of the two above grounds, has not been admitted or paroled into the USA and cannot show that they have been present in the USA for at least two years. 

Expedited removal, as applied by DHS, does not have any of the procedural protections of a hearing before an Immigration Judge. The DHS officer who is authorized to issue an order of expedited removal operates as prosecutor and judge and often arrests an individual and orders him or her deported on the same day. With limited exceptions, the government takes the position that noncitizens subject to expedited removal have no right to an appeal. At least one court has even held that certain immigrants in expedited removal proceedings have no right to counsel. United States v. PeraltaSanchez, Nos. 14-50393, 14-50394, _ F.3d_, 2017 U.S. App. LEXIS 2165 (9th Cir. Feb. 7, 2017). 

Application for Asylum and/or Fear of Returning to Your Home Country

If at any time during the expedited removal, an individual expresses intent to apply for asylum or fear of returning to their home country, the DHS Officer must refer them to an asylum officer for an interview. Upon referral, the asylum officer will conduct a “credible fear interview,” which is designed “to elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture.

If the asylum officer determines that the individual satisfies the credible fear standard, the applicant is taken out of the expedited removal process, is served with a Notice to Appear, and is placed in removal proceedings before an immigration judge.

If the asylum officer makes a negative credible fear determination, the officer must provide a written record of the determination. Upon request, the individual must be provided with prompt review of the determination by an immigration judge. If the immigration judge determines that the individual has a credible fear of persecution, the expedited removal order will be vacated and DHS will institute removal proceedings. If the immigration judge determines that the individual does not have a credible fear, the case will be remanded to DHS to execute the expedited removal order.

Does the New Executive Order Expand Expedited Removal?

The new Executive Order instructs the Secretary of Homeland Security to apply expedited removal to the fullest extent of the law. It has not been implemented yet and Secretary Kelly has advised that he will publish in the Federal Register who will be subject to Expedited Removal and such notice may state the extent to which Expedited Removal is expanded from its current application. It is possible that immigration officers will use expedited removal against any noncitizen apprehended anywhere in the USA and who entered the USA without inspection less than 2 years prior to the date of expedited removal.

It is too early to know how DHS will implement an expansion of expedited removal. DHS has discretion to elect between issuing an expedited removal order, allowing withdrawal of an application for admission or issuing a Notice to Appear and placing the individual in removal proceedings before an immigration judge. Requesting that DHS exercise its prosecutorial discretion to either allow withdrawal of an application for admission or issue a Notice to Appear is advisable. Furthermore, the INA provides that an individual may be subject to expedited removal only if she or he “has not affirmatively shown, to the satisfaction of an immigration officer, that [she or he] has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.  DHS officers are obligated to put an individual into immigration court proceedings, rather than expedited removal, if that person provides proof that she or he has been present in the United States for two years (or a lesser amount of time depending upon the scope of any expansion of expedited removal).

It is extremely important that if you have been here for two or more years you weigh up the pros and cons of carrying evidence that you have resided in the USA for two years.  DHS may incorrectly ignore it, see it as an admission of alienage and use it as proof against the individual either of unlawful status or working without work authorization.  If you do decide to carry such evidence, evidence may include any applications you have filed with immigration and/or documents that evidence you are eligible for an immigration benefit such as marriage to a United States citizen or Lawful Permanent Resident. It can also include tax returns, school, work, medical and bank records. 

Finally, have a back-up plan for small children or elderly family members if you are placed in expedited removal. Who will pick up your children from school? Who will care for them if you are placed in expedited removal? Perhaps consult with attorneys about guardianship and power of attorney documents for medical and other important decisions if you are suddenly removed from your family with little or no notice.   And for all the permanent residents and citizens reading this—call your representatives daily and let them know that we are a nation of immigrants. It is unamerican to tear families apart. This is not who we are as a nation. 

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues.  She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

The U.S. Department of State (DOS) issues a monthly visa bulletin summarizing the availability of immigrant visa numbers.  The DOS has now issued the September 2016 Visa Bulletin.  This is the final visa bulletin for fiscal year 2016, and the new FY will begin October 1st.   

CURRENT EMPLOYMENT BASED VISA BULLETIN.  MONTH OF SEPTEMBER 2016.

EMPLOYMENT BASED:  COMPARING AUGUST 2016 VISA BULLETIN TO SEPTEMBER 2016 VISA BULLETIN

First Preference, EB1.  Cutoff date of 1/1/2010 for India and China remain the same. 

Second Preference, EB2.  India has advanced by a few months but continues to be retrogressed.   Cutoff date of 2/1/2014 remain in place for the all chargeability areas plus El Salvador, Guatemala, Honduras, and Mexico.  The cutoff date of 01/01/2010 for China remains unchanged.

Third Preference, EB3.  China remains the same. The rest of the cutoff dates have moved forward. 

Other Workers, Third Preference, EB3.  China remains the same.  The rest of the cutoff dates have moved forward.

Fourth Preference, EB4.  All have remained the same. 

Fifth Preference, EB5.  All have remained the same. 

 CURRENT FAMILY BASED VISA BULLETIN.  MONTH OF SEPTEMBER 2016.

INSIGHTS AND PREDICTIONS FROM CHIEF OF VISA CONTROL AND REPORTING-DOS, CHARLIE OPPENHEIM

Please note these are only short-term predictions.  “Charlie must make assumptions regarding upcoming demand based on the available data and his prior experience in an effort to stabilize Final Action Date movements. Charlie prefers to advance the Final Action Dates conservatively in the hope of avoiding a retrogression later in the fiscal year, especially in categories that are subject to upgrades and downgrades. Unfortunately the need to generate sufficient demand to use all numbers available under the annual limits often requires aggressive forward movement of the dates.” 

As noted in AILA’s DOS Liaison Committee’s monthly report, the following is a summary of a check-in with DOS’s Charlie Oppenheim (AILA Doc. No. 14071401 | Dated July 26, 2016):

• “Charlie projected possible Final Action Date movement for September.
• EB4. Though EB-4 Mexico and EB-4 India will become current again in October, the prospects for a full recovery for EB-4 El Salvador, Guatemala, and Honduras are much less likely. A 2015 cut-off date will likely be established in these categories for October, with date(s) moving forward slowly through the next fiscal year. However, uncertainty surrounding the movement of the EB-4 Final Action dates for these Central American countries remains, given the lack of visibility into the number of adjustment of status filings that were received in April 2015, prior to the establishment of the cut-off date in May.
• Family-Based Projections. Charlie expects a full recovery from retrogressions in all of the family-based categories in October, with the exception of F-4 China and F-4 India which will take some time. Beginning in November 2016, beneficiaries of F-4 China and F-4 India started responding to NVC Agent of Choice letters in larger numbers, which has given Charlie better visibility into the demand in these categories, but ultimately resulted in the retrogression of these cut-off dates.
• F-4 China, which previously shared the F-4 Worldwide Final Action date until retrogressing in June (AILA Doc. No. 16050607) to January 1, 2003, while this category will not advance in September, there should be a full recovery to the prior Final Action date of July 22, 2003 by November.
• Similarly, F-4 India also shared the F-4 Worldwide Final Action date until it retrogressed in June. Charlie continues to predict that the Final Action date for F-4 India will remain at January 1, 2001 through September. A full recovery of this category to the Worldwide level will not happen in October. Given the high level of demand, the Final Action date should advance to around November 2002 in October, with a full recovery unlikely to happen prior to June 2017.
• Charlie will be watching the F-2A and F-3 preference categories very carefully. Both categories are likely to retrogress temporarily in September, and then return to their respective August 2015 Final Action dates in October.
• EB Preference Categories. EB-2 India will continue to track one week ahead of the EB-3 India Final Action date in September.  EB-3 Worldwide has been hovering close to “current” for some time, and is expected to do so through at least October.
• October Final Action dates for the EB-5 Regional Center categories remain uncertain as that category will sunset unless Congress acts prior to the end of the fiscal year.
• In setting cut-off dates for EB-1 China and EB-1 India, Charlie hoped to avoid having to establish a cut-off date for EB-1 Worldwide. Charlie expects that EB-1 China and EB-1 India will become current again in October, or November at the latest.”

Effective May 10, 2016, eligible F-1 nonimmigrant students with STEM degrees from Student and Exchange Visitor Program (SEVP)-certified and accredited U.S. colleges and universities may apply for a 24-month STEM OPT extension from their school and employment authorization from United States Citizenship and immigration Services (USCIS). This extension effectively replaces the previous 17-month OPT Extension.

Can I obtain an additional 7 months of work authorization if I am on a 17-month OPT

Students currently participating in a 17-month STEM OPT extension may be eligible to benefit from the additional seven months of training and must apply for updated employment authorization from USCIS by August 8, 2016. Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires is terminated or revoked. DHS will not automatically convert 17-month extensions into 24-month extensions.

From May 10, 2016, through August 8, 2016, certain students with such EADs will have a limited window in which to apply for an additional seven months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT. To qualify for the additional seven-month extension, the student must satisfy the requirements below and pay all applicable fees. For students who choose to seek an additional seven-month extension, the new enhancements apply upon the proper filing of the Form I-765 requesting the seven-month extension. 

DHS recommends that students who choose to request the additional seven-month extension obtain the necessary DSO recommendation and file their application as early as possible in advance of the August 8, 2016, application deadline. 

To qualify for the seven-month extension, such students must have at least 150 calendar days remaining before the end of the student’s 17-month OPT period at the time the Application for Employment Authorization is filed and they must meet all requirements of the OPT 24-month extension. 

If an application for a seven-month extension is approved, USCIS will issue an EAD with a validity period that starts on the day after the expiration date stated in the 17-month STEM OPT EAD.

 How Do I Qualify for the 24- Month OPT Extension

 To qualify for a 24-month STEM OPT extension, an F-1 student participating in an initial period of regular post-completion OPT must: 

• Have a degree in an eligible STEM field from a Student and Exchange Visitor Program-certified school that is accredited when the student submits their STEM OPT extension application to USCIS.
• Pursue their STEM OPT extension through an employer that is enrolled in USCIS's E-Verify employment eligibility verification program.
• Select a STEM OPT employer that provides the student with formal training and learning objectives.
• Work a minimum of 20 hours per week per employer.
• Complete a FORM 983 Training Plan
• WHAT IS FORM 983 or Training Plan
•  
• Before applying to USCIS for a STEM OPT extension, a STEM OPT student must complete, sign and submit the Form I-983 to their DSO.  You can download the Form and Instructions at https://www.ice.gov/sites/default/files/documents/Document/2016/i983Instructions.pdf and https://www.ice.gov/sites/default/files/documents/Document/2016/I-983.pdf
• The STEM OPT student and their prospective employer must work together to complete this form. STEM OPT students and their employers are subject to the terms of the 24-month STEM OPT extension regulations and Form I-983 instructions, effective as of the start date requested for STEM OPT, as indicated on the form.
•  
• Students are responsible for facilitating the completion of this form, submitting it with their STEM OPT application and returning it to their DSO, who will keep it in the student’s record. DHS maintains the discretion to request and review all documentation for eligibility concerns.
•  
• The STEM OPT student must complete Section 1 of the Form I-983 and work with their prospective employer to complete Sections 2-6. In Section 5 of the Form 983 the Employer should describe what tasks and assignments the student will carry out during the 
•    training and how these relate to the student’s STEM degree. The plan must cover a specific span of time, and detail specific goals and objectives.
• For students currently on the 17-month STEM OPT extension and requesting conversion to the terms and conditions of the new 24-month STEM OPT extension, the student and employer will be subject to the terms and conditions of the Form I-983 as of the date of receipt at USCIS. Thus, the requested period should identify a start date on or around the date that the student files their seven-month STEM OPT extension with USCIS The USCIS offers useful tips to complete this form on their website at https://studyinthestates.dhs.gov/employers-and-the-form-i-983Reporting
• Requirements
• There are reporting requirements associated with STEM OPT extensions.
• The student must work with their potential STEM OPT extension employer to complete the Form I-983, which must include how the training opportunity has a direct relationship to the student’s qualifying STEM degree.
• Employers must report to the relevant DSO (indicated on the Form I-983) when an F-1 student on a STEM OPT extension terminates or otherwise leaves their employment before the end of the authorized period of OPT. The employer must report this change to the appropriate DSO no later than five business days after the student leaves employment.
• STEM OPT students must report to their DSOs every six months. As part of such reporting, STEM OPT students must confirm the validity of their Student and Exchange Visitor Information System information, including:
  • Legal name.
  • Address.
  • Employer name and address.
  • Status of current employment/practical training experience.

1. STEM OPT students must do an annual self-evaluation on Form 983 and must report to their DSO about the progress of the training experience. Students must sign the self-evaluation prior to submitting it to the DSO, who will include it in the student's record.
2. Both the student and employer are obligated to report to the student's DSO any material changes to, or material deviations from, the student's formal training plan.UnemploymentDepartment of Homeland Security allows STEM OPT Students an additional 60 days of unemployment during the OPT Stem Extension Period. The 150-day unemployment limit that is applicable to students who are granted the 24-month STEM OPT extension is also applicable to students whose seven-month extension is approved under the transitional plan. These students are allowed an additional 60 days of unemployment, for a total of 150 days of allowable unemployment (90 days during the initial period of post-completion OPT plus an additional 60 days during the extension period). This 150-day unemployment limit will apply to a student seeking a seven-month extension only upon approval of that extension (and not during the filing of such extension).   

Our firm provides full-service professional legal advice and representation to help you find an immigration solution to your visa needs.  Please contact us to discuss your Immigration Options

 U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.

USCIS will use a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.

USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general cap. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

The DV Lottery 2017 begins on October 1, 2015 at noon Eastern Standard time(EST) and ends on November 3, 2015 at noon EST.  The official program instructions are attached at this hyperlink with answers to Frequently asked questions.DV-2017_Instructions_and_FAQs

The instructions for entry are simple but strict.  Entrance is free.

Who Is Eligible

See the attached link for countries eligible to participate.  If you are not from a country that is on the attached list you do not qualify unless:

1.  your spouse is born in a country that is eligible and both of you are listed on the entry or

2.  if you were born in a country in which neither of your parents were born or legally resided at the time of your birth.  For example, your parents were vacationing in an eligible country when you were born.  

Educational Qualifications

Must have completed high school or its equivalent or have 2 years of work experience in the past 5 years in an occupation requiring at least 2 years of  experience or training.  

Where to Submit the Application  What to Include in the Application

Submit your application electronically at www.dvlottery.state.gov 

What Information to Include in the Application

1.  Name – last/family name, first name, middle name – exactly as on your passport.

2. Gender – male or female.

3. Birth date – day, month, year.

4. City where you were born. 

5. Country where you were born – Use the name of the country currently used for the place where you were born.

6. Country of eligibility for the DV program

 7.  Entrant photograph(s) – Recent photographs (taken within the last six months) of yourself, your spouse, and all your children listed on your entry in Jpeg format

You can take a new digital photograph or scan a recent (taken within the last six months) photograph with a digital scanner, as long as it meets the compositional and technical specifications listed below. Test your photos through the photo validation link on the E-DV website, which provides additional technical advice on photo composition and examples of acceptable and unacceptable photos. Photographs must be in 24-bit color depth. If you are using a scanner, the settings must be for True Color or 24-bit color mode. Compositional Specifications:  Head Position The subject must directly face the camera. o The subject’s head should not be tilted up, down, or to the side. o The head height or facial region size (measured from the top of the head, including the hair, to the bottom of the chin) must be between 50 percent and 69 percent of the image's total height. The eye height (measured from the bottom of the image to the level of the eyes) should be between 56 percent and 69 percent of the image's height.

8. mailing address

9.  country where you live today

10.  phone number

11.  Email

12.  Highest level of Education at Date of Entry

13.  Current Marital Status.  Enter the name, date of birth, gender, city/town of birth, and country of birth of your spouse, and a photograph of your spouse meeting the same technical specifications as your photo. 

14.  Number of children – List the name, date of birth, gender, city/town of birth, and country of birth for all living unmarried children under 21 years of age, regardless of whether they are living with you or intend to accompany or follow to join you.

What if I am Selected

 Based on the allocations of available visas in each region and country, individuals will be randomly selected by computer from among qualified entries. All DV-2017 entrants will be required to go to the Entrant Status Check using the unique confirmation number saved from their DV-2017 online entry registration to find out whether their entry has been selected in the DV program. Entrant Status Check will be available on the E-DV website at www.dvlottery.state.gov starting May 3, 2016, through at least September 30, 2017. If your entry is selected, you will be directed to a confirmation page that will provide further instructions, including information about fees connected with immigration to the United States. Entrant Status Check will be the ONLY means by which selectees are notified of their selection for DV-2017. The Department of State will not mail notification letters or notify selectees by email.  It is extremely important ot keep the confirmation page.  

All processing of entries and issuance of DVs to selectees meeting eligibility requirements and their eligible family members must be completed by midnight on September 30, 2017.  

 Karen-Lee Pollak is the chair of Bell Nunnally & Martin’s Immigration Section.  She has received numerous immigration awards including Texas Rising Star® by Texas Monthly, repeatedly selected as a Best Lawyer in Dallas by D Magazine, selected as one of  Newsweek’s Leaders in Immigration Law Showcase, and named by  Corporate Intl Magazine Legal Award as ‘Immigration Law Firm of the Year in Texas’. Karen-Lee provides full-service legal immigration counsel to large corporations, small businesses and individuals.  Karen-Lee  is the author of an immigration blog, Immigration Solutions which provides information and updates on immigration issues, topics and tips.  She is also a frequent speaker and writer on immigration issues.  You can reach Karen-Lee at 214-740-1475 or email her at karenlp@bellnunnally.com or under her twitter handle law_immigration.  

 

On September 25, 2015, the Department of State published a revised visa bulletin for October, rolling back the "Dates for Filing" for several visa categories. This revised September 25th Visa Bulletin supersedes the previous visa bulletin released for October published on September 9, 2015.

Manyy EB2 employees will be dissapointed to learn that DOS has rolled back the priority date for filing adjustment of status applications by 2 years for Indian Citizens  and almost 1 year for citizens of China.  

Please note that the following "Dates for Filing" have changed:

Great News!!!  The U.S. Department of State (DOS) has published the October visa bulletin with a new format that will allow applicants to file I-485 Applications to Adjust Status to permanent resident even before an immigrant visa number is immediately available. 

The new format will enable applicants and their dependent family members under backlogged categories to apply for ancillary benefits much earlier, including Employment Authorization Document (EAD) cards and Advance Parole travel documents.  Earlier filing of an I-485 Application to Adjust Status to permanent resident will also enable applicants to qualify for “portability” of the permanent residency process earlier, because eligibility is triggered by the passage of 180 days since the filing of the applicant’s I-485 Application to Adjust Status.

What does this mean?

With the October Visa Bulletin, DOS has included two separate cutoff dates under backlogged categories.  The “filing cutoff date” represents the cutoff date for filing new Applications to Adjust Status to Permanent Resident (green card) with U.S. Citizenship & Immigration Services (CIS).  The “final action cutoff date” represents the cutoff date for approval of pending applications.  The “final action cutoff date” is the date traditionally published each month in the Visa Bulletin.

EB-2 China

Under the October Visa Bulletin, Employment-based, Second Preference (EB-2) applicants born in China may file their Applications to Adjust Status with CIS if their priority date is earlier than May 1, 2014.  The priority date is normally the date that the ETA-9089 PERM Application for Permanent Employment Certification (labor certification) was filed or if no labor certification is required, the date that the I-140 Immigrant Visa Petition was filed with CIS.

Although applicants will be permitted to file their applications so long as their priority date is earlier than the new filing cutoff date, their applications cannot be approved by CIS until the later approval cutoff date of a January 1, 2012 priority date which is the date that has existed under old versions of the bulletin.

Whenever filing an Application to Adjust Status, applicants and their qualifying dependent family members may file Applications for Employment Authorization and Advance Parole for international travel concurrently with the Application to Adjust Status.  Individuals who hold an Employment Authorization Document (EAD) card may apply for Social Security Number cards with the U.S. Social Security Administration.

EB-2 India

Under the October Visa Bulletin, EB-2 applicants born in India may file their Applications to Adjust Status with CIS if their priority date is earlier than July 1, 2011.  Pending Applications to Adjust Status may be approved if the applicant’s priority date is earlier than May 1, 2005.  The new final action cutoff date reflects an 8 month retrogression from the cutoff date in the September Visa Bulletin.

EB-3 India, China, Philippines and the World

As expected at the beginning of the new fiscal year, the EB-3 category has advanced for China, to a new final action cutoff date of October 15, 2011, with the newly established filing cutoff date of October 1, 2013.  The EB-3 India category will retrogress over ten months to a final action cutoff date of March 8, 2004, but a new filing cutoff date of July 1, 2005 will allow for filing of I-485 applications with requests for employment authorization and advance parole for the applicant and qualifying dependent family members much sooner than March 8, 2004, and sooner than the September 2015 Visa Bulletin cutoff date of December 22, 2014.  EB-3 applicants born in the Philippines must have a priority date earlier than January 1, 2015 to file their applications, and earlier than January 1, 2007 to have pending applications approved.  Applicants born in all other areas of chargeability must have a priority date earlier than September 1, 2015 to file their applications, and earlier than August 15, 2015 to have pending applications approved. 

Call or email Bell Nunnally & Martin to assist you in filing your application  

By initiating new applications now, applicants can hope to be ahead of the rush of anticipated filings as many new applicants become eligible to file applications during the month of October.  Filing at the very beginning of October should help applicants to avoid longer wait times for the adjudication of Applications for Employment Authorization and Advance Parole.