A foreign national can file an application to become a permanent resident if the foreign national has an immediately available visa. A petitioner files an immigrant petition on behalf of a foreign national to establish the foreign national’s eligibility to immigrate to the United States and the US government sets aside an immigrant visa for the foreign national based on the approved immigrant petition. The immigrant petition can be based on family relationship or on employment, and the filing date of the petition with USCIS determines the “priority date” of the foreign national for purposes of visa availability.
USCIS announced that for the purposes of adjustment of status, it will not be bound by the State Department decision, but it will decide every month which date to use – the “filing date” or the “final action date” from the Visa Bulletin. For the month of October, the USCIS will accept adjustment applications earlier as it will use the October Visa Bulletin “filing date” for all family based categories and for most employment based categories. People who qualify should file as soon as possible before the November Visa Bulletin as the USCIS may change its mind at that time.
There is a limited supply of visas and the foreign national’s “priority date” establishes a place in the line for him or her for an immigrant visa. This line sometimes may last for many years, even decades. The US government distributes this scarce number of visas among several immigrant categories, which are further redistributed based on country of birth, and many people wait for a long time before they can become permanent residents. The process to apply for permanent residence in the United States is called adjustment of status, but a person cannot file his or her adjustment of status application before the person’s “priority date” becomes current, which means that the foreign national is at the end of the line and there is a visa available for him or her.
People who have a pending adjustment of status application can receive interim benefits, including work permit and travel permit, even if the visa number becomes backlogged again while the adjustment application is pending. Therefore, a person who is able to file adjustment of status during a window of visa availability, is in a better position than foreign nationals that cannot file either because they miss the chance to file when a visa is available, or because for their category the opportunity is far into the future.
The State Department publishes Visa Bulletin every month announcing the cut off dates for priority dates. Generally, people whose “priority dates” are earlier than the cutoff date for the month, can apply for adjustment of status or consular processing. The State Department now publishes two dates – a “filing date” and a “final action date”, permitting applicants who will process at a consulate abroad to file before the “priority date” is current so that the application can be ready for approval once the “priority date” becomes current on the “final action date.”
If you have any questions regarding eligibility, the immigration attorneys of Zneimer & Zneimer will be happy to assist you.