On Second Thought... (changes to the October 2015 Visa Bulletin causes confusion)

Changes to the October 2015 Visa Bulletin causes confusion...

On September 9, 2015, the U.S. Dept. of State surprised lots of people by publishing its October Visa Bulletin with 2 different columns and dates used to determine when a visa applicant can apply for lawful permanent residency.

(See previous blog on the new process for determining filing dates for lawful permanent residency.  In a nutshell, the new process allows applicants to file their applications prior to the actual 'Priority Date' being current.)

A mere 16 days later, it issued a mea culpa in the form of a new revised October 2015 Visa Bulletin with revised filing dates.  Evidently, erroneous information was used to determine the appropriate 'filing dates' for certain immigrant visa preference categories.

As a consequence, the October Visa Bulletin published on September 25, 2015 reflected revised filing dates - particularly for the EB-2 China and India categories - that were not nearly as generous as the original Visa Bulletin published on September 9.  (The EB-2 category for China moved backwards nearly 1 year; the EB-2 category for India moved backwards 2 years.  The EB-3 category for the Philippines moved backwards 5 years.)

Unfortunately, for prospective immigrants who were excitedly preparing their immigrant visa applications, the amended filing dates proved to be a huge letdown.  A lawsuit - Mehta v. DOS, in the Western District of Washington - sought class-action status to compel the U.S. Dept. of State to accept applications filed pursuant to the original October Visa Bulletin published on September 9, 2015. A motion for a Temporary Restraining Order ('TRO') - in effect restraining the implementation of the revised October 2015 Visa Bulletin - was denied, and the case is still pending.

Since then, the November 2015 Visa Bulletin has been published - with very little movement in those categories; and the December 2015 Visa Bulletin should be published in the next week or so -

for now... the wait continues...

Finding Your Place In Line For A 'Green Card'

For many foreign nationals living in the United States waiting to apply for a ‘green card’, a daily routine is to log-on to the U.S. Department of State website to check the status of their ‘priority date’ on the State Department’s ‘Visa Bulletin’.  Those who logged in yesterday were surprised to see the publication of the October 2015 Visa Bulletin with an extra Priority Date table.  But what does it mean? 

It’s a fairly significant new development.

But to grasp its significance, let’s take a step back to look at the big picture.

The U.S. Department of State regulates the issuance of ‘green cards’ based upon the distribution of immigrant visas around the world.  Since the demand for ‘green cards’ by natives of some countries (such as China, Mexico and India) is greater than the demand from other countries, there are not enough immigrant visas to supply the demand from these oversubscribed countries.  Consequently, there is a backlog of ‘green cards’ for these natives.

 Foreign nationals who originate from these countries must therefore ‘stand in line’ to wait to apply for their ‘green card’.  Their place in line is determined by the date the person either filed an immigrant visa petition – or an employer filed a labor certification application on this person’s behalf.  This date is known as a ‘Priority Date’.

Each month the U.S. Department of State publishes a ‘Visa Bulletin’ that charts the Dates of ‘green card’ applications being processed.  If a foreign national’s own ‘Priority Date’ is a date that precedes the ‘Priority Date’ published in the Visa Bulletin, that person is then eligible to file an application for a ‘green card’.  For example, if a foreign national has a ‘Priority Date’ of October 3, 2011, and the Priority Date shown on the Visa Bulletin for that person’s category shows January 1, 2012, then that foreign national may then apply for a ‘green card’.

Until the individual’s Priority Date precedes the Priority Date published in the Visa Bulletin, one could not file an application for a ‘green card’.   Until now…

The October 2015 Visa Bulletin offered a pleasant surprise for many:  a new, second chart known as a ‘Filing Date’ Chart.  Under this new provision, the U.S. Department of State will allow foreign nationals to file a ‘green card’ application based upon a new ‘Filing Date’ – rather than waiting for the date previously referred to simply as the ‘Priority Date’.  For most visa categories, the ‘Filing Date’ is more recent than the older ‘Priority Date’ (which is now also referred to as the ‘Final Action’ Date).

What this means is that the ‘Final Action Date’ is the date that the U.S. Department of State will actually process the ‘green card’ application.  This generally corresponds with the previous ‘Priority Date’ charts to which we were accustomed.  In other words, the U.S. Department of State will still wait until the foreign national’s ‘Priority Date’ is current before making a decision on the application – but the individual may now file the application well beforehand – based upon the new ‘Filing Date’ chart.

 Why is this important?  Because when a foreign national gets to file an Application for a ‘green card’, she may also concurrently file an application for Employment Authorization and Advance Parole (the ability to travel while the ‘green card’ application is pending).  In other words, ‘green card’ applicants from the oversubscribed countries may get some of the benefits that accompany a ‘green card’ application while still waiting in line for their ‘green card’ application to be processed.

So for example, this is how it might work: a foreign national from China in the EB-2 category (professional holding an advanced degree) may have a ‘Priority Date’ of June 12, 2013 based upon a Labor Certification Application filed on her behalf.  The ‘Priority Date’ / (Final Action Date) published in the October 2015 Visa Bulletin shows the Priority Date for that category to be January 1, 2012.  In previous months, this person would have to continue waiting until the Visa Bulletin shows a Priority Date in that category after June 12, 2013, before she could file an application – which may be a year or more away.  However, the new Visa Bulletin now shows a second ‘Filing Date’ chart that shows a date of May 1, 2014.  Since the foreign national’s ‘Priority Date’ precedes this new ‘Filing Date’, she is eligible to go ahead and file the ‘green card’ application.  Even though it still will not be processed until her June 12, 2013 Priority Date becomes current under the ‘Priority Date / Final Action Date, she can nonetheless go ahead and file the application and get Employment Authorization and Advance Parole for a family member(s) while they continue to wait in line for her Priority Date to become current.

The U.S. Department of State also asserts that allowing these foreign nationals to apply ahead of time will allow the State Department to more accurately predict the future availability of immigrant visas that will need to be processed.  Based upon the recent wild fluctuations in the Priority Dates for some of these categories in the past year, this can only be a good thing.

So, at the end of the day, these foreign nationals will still have to wait in line, as before – but at least they get to snack on some fairly significant benefits while standing there.

Is There a Doctor In The House…or Senate?

 

A long-term patient known as ‘Conrad’ is about to expire on September 30, 2015 unless Congress can resuscitate it and provide a permanent cure.

The ‘Conrad 30’ Program, named after former North Dakota Senator Kent Conrad - the law’s original sponsor, is a program for foreign physicians who come to the U.S. with a J-1 visa to complete their medical residency.  The J-1 visa permits foreign medical graduates to receive education and training in a Residency program in the U.S.  However, one of the terms of the J-1 visa – also known as an ‘exchange-visitor’ visa – is that it requires the visa holder to return to his or her home residence for 2 years before being eligible to adjust status or change to another type of visa that permits her to practice medicine in the U.S.  In other words, the newly-trained physician must return home for 2 years before being able to practice medicine in the U.S… unless….

…the physician is able to get a ‘waiver’ of the 2-year home residency requirement found in §212(e) of the Immigration & Nationality Act.

There are several ways in which any J-1 visa holder may request a ‘waiver’ of the 2-year home residency requirement; among these are ‘subject to persecution’ if she were to return to her home residence, exceptional hardship, and other scenarios with very high standards that not everyone can meet.  But physicians have a friend in ‘Conrad’.

The ‘Conrad 30’ program is designed specifically for physicians who desire a waiver of the 2-year home residency requirement.  Each state runs its own ‘Conrad 30’ program with its own set of guidelines, but there are a few fundamental terms that all ‘Conrad 30’ programs share; among those are that a physician must be willing to serve at least 3 years in H-1B visa status working at least 40 hours/week in a federally-designated medically underserved area providing primary care – and sometimes specialty care – to the underserved population.   You already know why it’s named ‘Conrad’; the ‘30’ stands for the number of slots available in each state for physicians willing to serve in these medically underserved areas.

Although there are some other programs that provide ‘waivers’ for physicians in J-1 visa status, (for example, Appalachian Regional Commission, the U.S. Department of Health & Human Services, U.S. Dept. of Veterans Affairs, etc.), these other programs have narrow restrictions that limit their availability.  It is recognized that the Conrad 30 program is likely the most useful waiver program for physicians in J-1 status.

However, the original Conrad 30 program had a ‘sunset’ date that has been extended by Congress to keep the program alive for years.

Unless you’ve been in a coma for the past several years, you must recognize that the volatility and rancor of our elected leaders in Congress make the prognosis of their cooperation on an immigration bill anything but certain.

 This year presents a risk that the program will die due to the negligence – and perhaps the intentional refusal of care - of our politicians.

The good news is that Senators Klobuchar of Minnesota and Heitkamp of North Dakota have introduced a Bill in the Senate, (S. 1189) that not only extends the life of the Conrad 30 program, but makes it a permanent federal law by removing the ‘sunset’ provisions.

Known as the ‘Conrad State 30 and Physician Access Act’, this bill would also clarify certain elements of the National Interest Waiver for physicians and permitting the spouses of H-1B visa-holding physicians to change status to other types of visas besides the ‘H-4’ derivative visa, among other things.

The ‘Conrad State 30’ Program is a powerful incentive for healthcare systems in rural, urban and other medically underserved areas to attract and keep physicians to care for communities in need of primary care medical services.  Many healthcare systems rely heavily upon the benefits of the Conrad 30 program to staff their hospitals and facilities - and foreign medical graduates recognize the valuable benefit it provides for them; its demise would impact these communities disproportionately.

So if you were waiting for the right opportunity to contact your U.S. Senator or Representative on an issue that overwhelmingly affects the health of small, rural communities, this would be a good time to ask for their support of Senate Bill 1189 – before it’s too late.