October 1st, the first day of the federal government’s new fiscal year, is fast approaching and, with it, a replenishment of the overall supply of green cards. This can be an important time if you have a priority date and will be pursuing a green card through an adjustment-of-status (AOS) application in a family-based (FB) or employment-based (EB) category. But the Visa Bulletin, which plays a large role in this process, can be a headache to decipher.
In this post, I try and provide a practical introduction to how the Visa Bulletin works in determining if an FB or EB AOS application can be filed with US Citizenship and Immigration Services (USCIS) and once filed, if it can be approved. An AOS application is an application to adjust your immigration status from that of a temporary migrant to that of a permanent resident, obviously an extremely important step in feeling secure as you build a life in the United States. In the world of FB and EB AOS applications, it is important to note that priority dates and the Visa Bulletin impact both the ability to file the application with USCIS and, once filed, the ability of USCIS to approve the application. Generally, your priority date is either the filing date of their FB or EB immigrant petition or the filing date of their PERM application if such application is required.
In this post, FB AOS applications refer to the family-based applications of those other than the spouses or children of US citizens. If you are seeking permanent resident status based on your relationship as the spouse or child of a US citizen, you are not impacted by a limited annual supply of green cards. Therefore, your ability to file an AOS application and, once filed, to have it approved, is not impacted by priority dates and the Visa Bulletin.
Priority Dates, the Visa Bulletin, and Filing an AOS Application
To be eligible to file your FB or EB AOS application in a given month, your priority date must be “current” according to the Visa Bulletin chart USCIS is using that month to determine if the application can be filed. For FB and EB green card categories, the Visa Bulletin posts two charts each month: one for “Dates for Filing” and another for “Final Action Dates.” Your priority date is current if, for your combination of country of chargeability and green card category, the chart is notated either with a “C” or lists a cut-off date that your priority date falls before. (See here for an explanation of what “C” and cut-off dates mean.)
In some months, USCIS will use the Dates for Filing chart to determine if an FB or EB AOS application can be filed. In other months, USCIS will use the Final Action Dates chart. The chart USCIS uses to determine if an FB or EB AOS application can be filed can change from month to month. (See here for why.) Whichever chart USCIS is using in a given month, your priority date must be current in that chart for you to be eligible to file your application that month. This means that even though there is a chart specifically for “Dates for Filing,” it is possible—in fact, common—for USCIS to use the Final Action Dates chart to determine if an FB or EB AOS application can be filed. At the time of writing this post, USCIS uses this webpage to announce which chart it will use to determine if an FB or EB AOS application can be filed during that month.
Priority Dates, the Visa Bulletin, and Approving an AOS Application
Once your FB or EB AOS application is properly filed, the only Visa Bulletin chart that matters in determining whether the application can be approved is the Final Action Dates chart. In the month that USCIS finishes processing your application and deems it approvable on its merits, your priority date must be current in the Final Action Dates chart for USCIS to be able to approve the application. Processing your application involves USCIS reviewing the application’s contents, issuing any requests for evidence, collecting biometrics, conducting background checks and, if required, scheduling and conducting an interview with you.
Priority Dates and the Visa Bulletin v. AOS Application Case Processing Time
The timing of when your priority date becomes current according to the Final Action Dates chart is a separate issue from the USCIS case processing time for your AOS application. At the time of writing this post, USCIS uses this webpage to post its estimated AOS application case processing times. The information listed on this webpage represents USCIS’ estimated case processing times, regardless of whether an applicant’s priority date is current according to the Final Action Dates chart.
If, in the month that USCIS finishes processing your FB or EB AOS application and deems it approvable on its merits, your priority date is current according to the Final Action Dates chart, then your application can be approved. The fact that your priority date is current according to the Final Action Dates chart in a given month is not, by itself, sufficient for USCIS to approve your application. Rather, it must be current in the month that USCIS finishes processing your application and deems it approvable on its merits.
If, in the month that USCIS finishes processing your application and deems it approvable on its merits, your priority date is not current according to the Final Action Dates chart, then USCIS should hold your application in abeyance until your priority date becomes current according to the Final Action Dates chart. When that happens, your application can be approved, assuming no required documentation (medical exam report, for example) has expired and USCIS does not otherwise seek updated evidence. If required documentation has expired or updated evidence is sought, USCIS will likely issue you a Request for Evidence.
It is commonly said that immigration law is second only to tax law in its complexity. So, while hopefully this blog post can help you better understand this facet of one part of the immigration process, there really is no substitute for having qualified counsel at your side.
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AILA members looking for an easy-to-use client flyer that covers some of this as well may find this client resource helpful: https://www.aila.org/advo-media/tools/psas/visa-bulletin-understanding-the-basics.
