10.4.19

As of October 1, more employment-based applicants are able to apply for “Green Cards.” They can apply either by filing for adjustment of status (I-485) if in the United States, or by applying for an immigrant visa at a U.S. Embassy or Consulate abroad. This development is particularly important for applicants from India, and to a lesser extent China, where visa availability generally has significant waiting periods. Because visa availability changes monthly, eligible applicants should apply as soon as possible.

The reasons for this positive development are two-fold:

First, the new fiscal year, with a new annual allotment of available visa numbers, helps for those visa categories that have waiting periods.

Second, and most importantly, the U.S. Citizenship and Immigration Services is allowing employment-based applicants to file using the Dates for Filing Chart, rather than the Final Action Dates Chart.

The Final Action Dates Chart is used when the applicant’s priority date has been reached and adjustment of status or an immigrant visa can be granted. However, a few years ago, the State Department, which issues the monthly Visa Bulletin, introduced the Dates for Filing Chart, which contained dates that are generally more favorable to applicants than the Final Action Dates. In the past, applicants could begin the visa process if they met the Dates for Filing Chart, but could not actually be granted an immigrant visa until their priority date was reached on the Final Action Dates Chart.

Each month, the USCIS decides which Chart to use. It generally has required use of the Final Action Dates Chart for employment-based visas, so its decision to allow the more applicant-friendly Dates for Filing Chart this month was a welcome surprise. This action will allow many EB-1 applicants (top preference category) to file, including Indian and Chinese applicants. The action is also expected to help lower-priority EB-2 and EB-3 applicants; however, even with the change, there is a significant backlog of applicants in these categories – particularly, Indian applicants.

It is safest to file before Monday, October 14. The USCIS has announced that a new I-485 Form (not yet issued, but expected to be more detailed) will have to be used starting October 15. There are criticisms by interested groups of how the USCIS is handling issuance of this new I-485 Form and some talk of litigation.

We will keep you posted. Please contact your Constangy attorney promptly if you may benefit from this new development.

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