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.
