Relief from Backlogs! (New USCIS Procedures for Retrogressed Applicants)

^{This article was updated on September 25, 2015}
 
Finally, some great news for green card applicants stuck in family and employment-based category backlogs! On September 9, 2015, USCIS announced that it has revised procedures that will allow certain green card applicants to file an I-485 adjustment of status application before his or her priority date is current.

As of October 2015, the Visa Bulletin will include two separate charts in both the family and employment based categories. The first chart, the “Application Final Action Dates” chart will list the priority dates that are current. In order for USCIS to approve an immigrant visa (i.e. green card), the priority date must be “current.” A priority date is current if there is no backlog in the category (shows as “C”) or if the priority date is on or before the date listed in the Visa Bulletin. The second, new chart is the “Dates for Filing Application” chart, which indicates the date when a green card applicant can submit an I-485 adjustment of status application. If the date on the chart is current (“C”) or your priority date is earlier than the date on this chart, you may file your I-485 adjustment of status application with USCIS.

What does this all mean? Many applicants in both the family and employment based categories, have been “stuck” in backlogs, known as retrogression, for many years. Many applicants would have waited years, even decades before being eligible to apply for an I-485 adjustment of status application. This move is especially significant for many Chinese and Indian nationals who are stuck in long, almost depressing backlogs. While this change does not “speed up” the wait to actually obtain the green card, it does provide relief for many applicants and their families who can now obtain “combo” cards which provide unrestricted employment and travel authorization. It also means that applicants may not have to constantly reapply for new visa stamps at U.S. embassies abroad and also allows greater flexibility with AC-21 green card portability.

Qualified applicants and their families will be able to submit an I-485 adjustment of status application when these changes become effective on October 1, 2015. Based on current processing times, we expect USCIS to take approximately 2 to 3 months to process the combo card.

If it all sounds like mumbo jumbo and you are more of a visual person, here’s an example of how to read the charts. Let’s use the following hypothetical. Pretend that Donald is an Indian national, married to the lovely Hillary. Donald filed under the EB-2 category and has a priority date of June 14, 2011. The October 2015 Visa Bulletin’s “Application Final Action Dates” chart (Chart 1) shown below, lists EB-2 India as May 1, 2005. This means that an immigrant visa (i.e. green card) can only be issued (i.e. I-485 adjustment of status application approved) to an Indian national with a priority date on or before May 1, 2005. Donald’s priority date is not yet current. Is Donald out of luck?
 

Application Final Action Dates for Employment-Based Preference Cases (CHART 1)

 
Maybe not! Donald and the lovely Hillary may qualify under this new provision and be able to submit their I-485 adjustment of status applications now. This is where the “Dates for Filing Employment-Based Visa Applications” chart (Chart 2) below, must be consulted. To find out if Donald qualifies now, he has to find his visa type in the first column (EB-2 or 2nd) of the Chart 2. He has to stay in the row and move directly to the right to find the corresponding date for India. Chart 2 lists July 1, 2011 for EB-2 India. In order for Donald and Hillary to file their I-485 applications, their priority date must be earlier than July 1, 2011. Since Donald’s priority date is June 14, 2011, he and Hillary, along with any non-U.S. citizen children, may apply for their I-485 adjustment of status applications.
 

Dates for Filing of Employment-Based Visa Applications (CHART 2)

 
But, imagine – what if Donald filed an EB-3 case instead of an EB-2? He and the lovely Hillary, would be out of luck. Chart 2 lists July 1, 2005 for EB-2 India. In this second hypothetical, Donald and Hillary would not be able to file their I-485 adjustment applications just yet. But, Donald would be able to extend his H-1B in three-year increments and Hillary could apply for the H-4 EAD. So, not all is lost!

For more information on retrogression, please read our FAQ.

If you have questions about qualifying for this new procedure, please contact any member of the Loke Walsh Immigration Law team.

UPDATE (9/25/2015):

On September 25, the U.S. Department of State (DOS) updated the Visa Bulletin for October 2015, which supersedes the Visa Bulletin for October 2015 that was originally published on Sept. 9, 2015 (when this article was originally written). The adjusted dates of filing are highlighted in the following tables:
 

UPDATED (9/25/2015): Dates for Filing Family-Sponsored Visa Applications

UPDATED (9/25/2015): Dates for Filing of Employment-Based Visa Applications