Give Me Your Tired, Your Poor, Your Huddled Masses, but Take a Ticket First: U.S. Institutes Measure to Shorten the Wait for a Green Card
Starting in October, 2015, an additional chart will be posted on the Department of State Visa Bulletin that provides new filing dates, or dates when applicants may be able to apply for permanent residence. This change was announced on September 9th and implements executive actions taken by the Obama administration in November 2014, detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015. The revised process aligns U.S. Citizenship and Immigration Services (USCIS) with the procedures the Department of State (DOS) uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.
The number of immigrant visas available each year is set by Congress and follows a complicated metric based on “preference categories” for both employment-based (EB) and family-based (FB) petitions. For instance, visa petitions for persons in the EB-1 category, i.e. for multi-national managers and executives, outstanding researchers, or persons of extraordinary ability, are considered more valuable to the U.S. economy and therefore are given preference over an EB-3 petition filed for a skilled worker with just a bachelor’s degree. Similarly, an immigrant petition filed for unmarried sons and daughters (over 21) of U.S. Citizens have priority over siblings of U.S. citizens.
In addition, Congress has fixed per-country limits that set the percentage of immigrant visas that can be given to persons from each country annually. Each country is given the same percentage allocation of the worldwide quota. Thus, persons from the countries with the highest rates of immigration to the U.S. – China, India, Mexico and the Philippines – experience much longer wait times than those individuals from countries with lower rates of U.S. immigration.
When an immigrant visa petition is filed for a foreign national, how long that person will have to wait to get a green card is determined by his or her “priority date.” The priority date is the date when the applicant’s relative or employer properly filed an immigrant visa petition on the applicant’s behalf with USCIS. For workers for whom a labor certification application was required, the priority date is the date the labor certification application was accepted for processing by Department of Labor (DOL). Much like a ticket at a deli, the priority date sets the applicant’s place in line. The length of time he or she must wait for a green card will depend on many factors, including where he or she falls on the preference list. For example, a first preference, Canadian-born adult child of a U.S. citizen will have a far shorter wait (currently seven years) than, say, a Philippines born sibling, for whom the current wait time is over 23 years! Likewise, an EB-1 Nobel Prize winning chemist will have no wait at all, whereas the current wait time is 11 years for an Indian-born computer programmer with just a bachelor’s degree and little professional experience.
For would-be immigrants and their relatives or employers in the U.S. this confusing system is clarified somewhat by the posting each month of the Visa Bulletin. This resource is published by the Department of State and it sets forth visa availability for each preference category according to priority dates. For each preference category the Visa Bulletin gives a current priority date, meaning that immigrant visas are available for those whose priority date is earlier than the date given. If the letter C is shown, then immigrant visas are available for all qualified applicants.
Beginning with the October 2015 Visa Bulletin, two charts per visa preference category will be posted in the DOS Visa Bulletin. The first shows the Application Final Action Dates (dates when visas may finally be issued). The second provides Dates for Filing Applications (earliest dates when applicants may be able to apply). The first of these dates will already be familiar and is described above. The second chart gives a date when USCIS will begin accepting immigrant petitions. This is new, and allows applicants to submit permanent residence applications in advance of visa availability, so that when a visa finally does become available their application materials will have already been submitted, shortening the time they receive the actual green card.
Besides the obvious benefit of being able to apply for permanent residence earlier than expected, applicants are now eligible for corresponding benefits that come with permanent residence petitions much earlier in the immigration process. These benefits include the ability to apply for an employment authorization document (EAD), travel permission, and, once 180 days have passed, the option to port an underlying I-140 to a new position or employer, pursuant to the American Competitiveness in the Twenty First Century Act (AC21).
USCIS believes this revised process will enhance the government’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. This will help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates. Especially for nationals from China, India, Mexico, and the Philippines this new measure brings much welcome flexibility, and short of comprehensive immigration reform is a welcome improvement to the administration of our nation’s immigration laws.