Department Of Homeland Security HeadquartersIn our September 16th blog posting, we discussed the updated Visa Bulletin which provided a new chart for would-be immigrants. The new chart provides Dates for Filing Applications, or the earliest dates when an applicant may submit his or her application for permanent residence. The new system was to begin starting with the October visa bulletin, and thousands of applicants prepared to avail themselves of this new benefit, only to be disappointed just a few weeks later, when the State Department issued a revised version of the October bulletin, and cutoff dates for EB-2 visa applicants from India were set back two years, to a priority date of July 1, 2009, and cutoff dates for EB-2 visa applicants from China were pushed back 16 months to Jan. 1, 2013. This was met with angry and frustrated immigrants who had already paid for medical examinations and attorneys’ fees based on the original October bulletin. A class action suit was filed, but a Washington federal court denied the bid finding the group hadn’t met key requirements for such an order.

Further complicating matters, U.S. Citizenship and Immigration Service (USCIS) has now announced that certain EB-2 immigrants can use the new filing dates chart in the November visa bulletin to apply for an adjustment to permanent resident status and obtain green cards, but that applicants will now need to check USCIS’ website each month to see which visa bulletin chart governs their ability to file green card applications. If one visits this website today, the reader will see the following notice:

Beginning with the November 2015 Visa Bulletin, if USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on this page that you may use the Dates for Filing Visa Applications chart. Unless otherwise stated on our website, the Application Final Action Date chart will be used to determine when you may file your adjustment of status applications.

We anticipate making this determination each month and posting the relevant chart on our website within one week of DOS’ publication of the Visa Bulletin.

Note: USCIS has determined that you may use the Dates for Filing Visa Applications chart for November 2015.

What does this turn of events mean for immigrant visa applicants? Recall the purpose of the new “filing date chart” was part of the president’s executive actions initiated in November 2014 which were designed to reform the immigration system in the absence of legislative action by Congress. One such measure was to make available unused immigrant visas in a more efficient way. It was thought that creating a “filing date chart” would be a way to do this. However, this proved unworkable almost immediately and cut off dates were set back by up to two years. Now, USCIS appears to still want to move forward with a system of early filing dates, but only where possible, and on a month to month basis, presumably to avoid another law suit and the disappointment and anger of thousands of immigrants who have spent years waiting for a green card only to be told to wait another two years. For would be immigrant visa applicants, therefore, we advise regular visits to the USCIS website to stay on top of any changes – for better or worse – to cut off dates for filing an application for permanent residence. DO NOT schedule and pay for a medical exam or incur the cost of an adjustment of status application until you are sure you may submit your application to USCIS. And, as always, consult with a knowledgeable immigration attorney before committing to an expensive course of action that may result in disappointment and frustration.

HR Legalist also wants to announce an important piece of news regarding the expansion of Optional Practical Training (OPT) for foreign students in the fields of Science, Technology, Engineering, and Mathematics, or STEM professions. Department of Homeland Security Secretary, Jeh Johnson, has announced that regulations would be put in place to restore the expansion of OPT for STEM students. The original OPT program allows any foreign student at a U.S. college or university to work in the U.S. for twelve months after graduation. Prior regulations allowed foreign STEM students to work for up to 29 months post-graduation, but this benefit was struck down by a federal judge in Washington, D.C., in August, finding that DHS failed to allow for public comment before issuing the regulations. However, the court allowed the STEM extension measures to remain in place for six months, to give DHS the opportunity to cure the procedural deficiency by allowing for public comment before final implementation. Secretary Johnson’s announcement will bring welcome relief to the many thousands of STEM graduates who feared the prospect of losing their jobs and having to return to their home countries, without the benefit of even applying for an H-1B visa or other nonimmigrant visa category.