Department of State Now Allowing for Early Filing of Permanent Resident Applications

September 11, 2015 Relief for people having difficulty maintaining lawful status in the U.S. until their priority date becomes current and they are eligible to adjust status to permanent resident.

Good news for persons in the United States who are seeking permanent residence: The Department of State will now allow those with approved family-based and employment-based petitions to apply for immigrant visas (permanent residence) earlier than the date those visas will actually become available to them. Adjustment of status applicants can also take advantage of the early filing dates if U.S. Citizenship and Immigration Services (USCIS) allows them to.

This change has the most significance for persons in the U.S. who have a path to permanent residence but whose status in the U.S. is going to expire. The new early filing dates, if USCIS permits, could allow such persons to maintain lawful status (their new status being adjustment applicant) while they wait for permanent residence. Moreover, with the filing of an adjustment of status application comes the ability to get work authorization and advance parole.

Early filing dates don’t have much effect on persons who are outside the U.S. or those who must leave the U.S. to get an immigrant visa. Their visa application does not entitle them to status, work authorization, or advance parole.

Early filing dates also have no effect on immediate relatives and others who are not subject to visa backlogs, such as the employment-based categories that historically have had no wait.

The change probably will affect employment-based adjustment applicants more so than family-based ones. For example, if an employer wants to hire a foreign-born student after graduation, the student may no longer need a long-term temporary visa such as an H-1B. He or she can first work on optional practical training (OPT). During that period, the employer can file a petition to classify the employee as someone eligible for employment-based permanent residence, using premium processing if necessary to make sure the approval happens within the OPT period.

With that approval, depending on the employment-based category and country the applicant is from, he or she may be able to file an adjustment of status application and secure the work authorization that will allow him or her to continue working in the U.S. until adjustment can be approved.

To find out whether USCIS is currently allowing adjustment of status applications to be filed according to the early filing dates, check www.uscis.gov/visabulletininfo.

The change is reflected in the State Department’s Visa Bulletin, which now has additional charts for determining the early filing dates. For both family-based and employment-based cases, there is a new “Dates for Filing” chart, showing cutoff dates for the various categories and nationalities.

Persons with priority dates before the listed dates can apply. However, this does not mean such persons have a visa available to them yet (or can adjust status, if USCIS allows it). Rather, they cannot get a visa or adjust unless their priority date is before the cutoff dates shown in the “Application Final Action Dates” chart.

We can expect the gap between the “date for filing” and the “final action date” to shorten or lengthen from time to time.