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Visa bulletin changes- early filing, greater CSPA benefits too?

UPDATE- On September 25, 2015, the government moved the previously-announced application filing dates for several preference categories, reducing the number of people who can take advantage of this new system in October. While employment-based preference categories had the largest changes, first and third preference family-based categories for Mexicans also moved substantially.

Considering the application dates changed even before they took effect, we recommend anyone eligible for the new filing dates to apply as soon after October 1st as possible before there is even more movement. The government has occasionally changed priority dates mid-month.

People who expected to apply for adjustment of status in October 1st, but who can no longer do so should still gather their documents and follow the visa bulletin closely. First, they may be eligible to file in an upcoming month. Second, there is discussion of raising concerns, or even possible litigation, with the government to make them honor the originally announced filing dates. While it is too early to predict the success of these efforts, they could possibly open a short filing window in the near future.

Many who have been waiting years for residency will soon be able to apply much earlier than expected starting in October, because the government will accept applications before they can actually be approved. Not only could this reduce waits for residency approvals, people will enjoy the benefits of pending adjustment of status applications, such as work and travel authorization, much sooner. Additionally, this change may protect children who would have otherwise aged out as dependents on their parent's visa petition.

The short version:

Beginning in October, beneficiaries of certain immigrant visa petitions will be able to apply for residency if their priority date is before a designated "filing" date, which is earlier than the date when the government can actually approve their applications. The difference between the filing and approval date depends on the category, but can be several months or even years. This will provide the benefits of adjustment of status applications- such as work authorization and travel permission- much sooner than expected. Also, more children included in a parent's visa petition may be protected from aging out of eligibility.

Fully understanding what happened and why it matters, however, takes some more explanation.

What is a priority date?

Most immigrant visa categories are subject to annual limits. When there are more visa petitions filed in a category than the annual cap allows, the government essentially creates a waiting list, requiring visa beneficiaries to wait until later years to apply for residency. Unfortunately, the waiting list in many visa categories is now several years.

A beneficiary's spot on the waiting list depends on the "priority date" of his or her visa petition. For family-based immigration, the priority date is when the visa petition is filed. For employment-based immigration, it is when the application for labor certification is filed (or visa petition in cases exempt from labor certification).

Beneficiaries cannot become lawful permanent residents until their visa petitions reach the front of the waiting list and become "current." Whether a visa petition is current is determined by a monthly list of categories and dates published by the government and called the "visa bulletin." "Current" priority dates fall earlier than the date listed for a specific category in the visa bulletin.

Unfortunately, waits in some immigrant visa categories can extend several years. For a detailed explanation of immigrant visa categories and quotas, please read our earlier blog post, "Reduce the visa backlog or most of us won't live to see the "end of the line": a (relatively) simple explanation."

Please note that some immigrant categories are not subject to the caps; for example, "immediate relatives"- the spouse, child under 21, or parent of a United States citizen. Beneficiaries of those visa categories can become lawful permanent residents as soon as the government processes their applications- they do not wait in line to apply.

Also, our office generally does not handle employment-based immigration. Therefore, while these changes will be very important for many employment-based immigrants, the benefits for them are not discussed in detail here.

What changed, and why will people be able to apply sooner?

Until recently, immigrant visa beneficiaries had to wait until their visa petition was current to apply for residency. In other words, they could not apply for residency until they reached a point in the line where the government could approve them right away under the annual cap. This may sound logical, but keep in mind the government takes several months or more to actually process the applications. Therefore, it was virtually impossible for people to actually become residents as soon as they got to the front of the line.

Beginning in October, however, the government will issue separate "filing" and "final action" dates. Filing dates will generally be later than final action dates, and therefore apply to visa petitions which have been pending less time. Beneficiaries of visa petitions will be able to apply for residency when their priority date is before the filing date, but cannot become residents until it is also before the final action date.

In other words, people will be able to apply for residency before they are actually eligible to become residents. The difference between the filing and final action dates varies by category, but many people may now be able to file for residency several months, or even years, than they are eligible to be residents.

Hopefully this will speed up the immigrant visa process by allowing people to become residents as soon as they reach the front of the line. Also, giving the government a greater pool of applications may increase the likelihood using all available visa numbers each year.

More important than speeding the residency process, however, the changes have two other key benefits.

1. Earlier filing for adjustment of status and work authorization.

In addition to residency, filing for adjustment of status can provide work and travel authorization while the application is pending. Therefore, many people will now get these vital benefits months, or even years, sooner than expected.

It should also be noted that there are very important additional benefits for filing for adjustment of status based on an employment-based visa petition, but they are beyond the scope of this article.

2. Greater protections under the Child Status Protection Act?

Many visa preference categories also include spouses and children of the primary beneficiary. A "child", however, must be under twenty-one for immigration purposes. Given the long waits, children included in visa petitions for parents often cannot become residents because they turn twenty-one before their parents' petitions are current.

Thankfully, the Child Status Protection Act ("CSPA") can reduce the likelihood that a child ages out of a visa petition. Fully explaining the CSPA is well beyond the scope of this article, but, among other things, it can lock children's ages for immigration when the petition becomes current. Therefore, children can still apply for residency with their parents if they are under twenty-one when the petition is current, even if the application process is completed after they turn twenty-one.

For example, children who are twenty years and ten months old when a parent's visa petition is current, remain eligible for residency even if the process is not completed until they are twenty-one or twenty-two.

While it is not certain the government will apply the CSPA in the same manner, there is a strong argument that a child's age is locked in when the visa petition is current under the filing date. Since this date is often well earlier than the final action date, many more children would be protected under the CSPA than before.

Again, the CSPA is very complicated, and has rules not discussed herein- such as the need to apply for residency within one year of eligibility. Anyone who might benefit from the CSPA should consult with an experienced attorney.

Conclusion

While time will tell the full impact of the new changes to the visa bulletin, this is very good news which will help thousands of people caught in visa backlogs.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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