It was a heart-wrenching wait for October and the State Department’s October Visa Bulletin. First, on September 9, 2015, the State Department announced significant and exciting changes to the Visa Bulletin. But then, on September 25, 2015, the State Department issued an updated Visa Bulletin for October 2015, in which many of the categories retrogressed, meaning that only petitions filed at an earlier date would be eligible to apply for residency in October.Now we are in November, and many people who were eligible to file in October have already done so. If you have not already filed your application and you are eligible, you should file by the end of November – the State Department and USCIS have processing the same dates from October in November, but we do not know what the December Visa Bulletin will bring.
What were these changes to the Visa Bulletin and do they still exist?
As we previously blogged, the change announced on September 9 was the creation of a new two-tier filing system based on “Application Final Action Dates” and “Dates for Filing Visa Applications.” The changes are designed to allow many more applicants to file their applications for residency sooner than when an actual visa number is available to them. (In actuality, the State Department and US Citizenship and Immigration Services [USCIS] have always used these categories internally to determine visa availability). As we discussed, the effect of the addition of the “Dates for Filing Visa Applications” was to allow a greater number of individuals in the US to file their applications for residency sooner than they would otherwise be able to file. One benefit is that applicants with an earlier filing date will be eligible to receive employment authorization after filing their applications for residency. Another benefit relates to employment- based green card applicants who want to switch employers; see our blog for more information on employment based green card applications.
The changes have not been rescinded; the revised October visa bulletin still contained a two-tiered system with “Application Final Action Dates” and “Dates for Filing Visa Applications.” The change that occurred was that some of the numbers retrogressed.
How does the visa bulletin work and what is retrogression?
A priority date determines a foreign national’s place in line for legal permanent resident status or a “green card.” An individual’s priority date may be based on when an employer first filed a labor certification on the individual’s behalf or when a family member first filed a petition to sponsor the individual. Once someone has a priority date, he or she can determine where they are in line for a green card based on his or her “preference category.” The preference category is determined by whether an individual is applying for a green card through an employer or family member as well as education and experience or familial relationship. Each month, the Department of State issues a Visa Bulletin so that individuals can track the movement of each preference category to determine whether they are eligible to file for a green card, which is also known as becoming “current.”
Retrogression occurs when in one month, you are eligible to file for permanent residency because your-priority date is current, but in the subsequent month’s Visa Bulletin, your number is no longer current. Retrogression means that you cannot file your application for residency until your number is current again. If you have already filed your residency application in the month that your number was current but visa numbers are no longer available mid-month, this retrogression means that USCIS will hold your application for a decision until your number is once again current.
What do the revised October Visa Bulletin and the current November Visa Bulletin mean for me?
The big change in the revised October Visa Bulletin (issued on 9/25/2015) is that many filing dates had retrogressed, meaning that many individuals could not file applications for residency in October, as they had expected when the State Department first published the October Visa Bulletin on 9/9/2015. Note, a “current” filing date under the “Dates for Filing Visa Applications” chart means that you can file your application for residency, but does not mean that a visa can actually be issued because the final action date is not yet current.
- Filing Dates for Mexico family petitions: the dates for Filing Dates for the Mexico F1 (unmarried adult children of US citizens) and F3 (married children of US citizens) family-sponsored categories retrogressed from 7/1/1995 to 4/1/1995 in FI, and 10/1/1996 to 5/1/1995 in F3. This means that all individuals who have F-1 petitions dated on or after 4/2/1995 could not file in October, as they had previously believed. Similarly, those with F-3 petitions dated after 5/2/1995 cannot file in October.
- Filing Dates for China employment petitions: the EB2 category retrogressed from 5/1/2014 to 01/01/2013.
- Filing Dates for India employment petitions: the EB2 category retrogressed from 7/1/2011 to 07/01/2009.
- Filing Dates for Philippines employment petitions: the EB3 category retrogressed from 1/1/2015 to 1/1/2010. The EB4 category retrogressed from 1/1/2015 to 1/1/2010.
The November Visa Bulletin
- In the family categories, no categories retrogressed, many categories remained the same, and several categories advanced by one or more months. Practically speaking, this means if you were eligible to file in October, you can also file in November, and some additional people who were not eligible in October can now file in November.
- In the employment categories, as with the family categories, no categories retrogressed, many categories remained the same, and several categories advanced by one or more months. Two categories had significant positive changes from October to November: EB-5 Regional Center Pilot Program and “certain religious workers” categories were listed as “unavailable” in October. The majority of those categories, however, were listed as “current” in November. These two categories were unavailable in October because Congress was considering an extension of these programs. On September 30, 2015, both programs were temporarily reauthorized (until December 11, 2015), which resulted in those cut-off dates immediately becoming “Current” (with the exception of EB-5 China) for October.
The December Visa Bulletin
- In the family categories, no categories retrogressed. In the “Final Action” categories, all categories advanced, ranging from a few days to about a year, except for Mexico fourth preference, which remained the same at April 1, 1997. The dates for the categories in the “Dates for Filing” categories remained the same as November. Practically speaking, this means if you were eligible to file in November, you can also file in December, and some additional people who were not eligible in November can now file in December.
- In the employment categories, no categories retrogressed. In the “Final Action” categories, all categories advanced, ranging from a few days to about a year. The dates for the categories in the “Dates for Filing” categories remained the same as November. Practically speaking, this means if you were eligible to file in November, you can also file in December, and some additional people who were not eligible in November can now file in December.
If you have any questions about these changes or the new category in the Visa Bulletin, please contact an attorney at Minsky, McCormick and Hallagan, P.C.