On September 9, 2015, the U.S. Citizenship and Immigration Services (USCIS) promulgated new procedures for determining the visa availability date for individuals waiting to file employment- and family-based applications for permanent residence (also known as "green cards") in the United States.¹  The U.S. Department of State (DOS) is responsible for the administration of the Immigration and Nationality Act's laws pertaining to immigrant visa issuance and the annual numerical limits, or quotas, on visa issuance. 

Each month the DOS issues a Visa Bulletin announcing the availability of immigrant visas to intending immigrants based upon their priority date.  In general, a priority date is the date on which a foreign labor certification application is filed with the U.S. Department of Labor in the case of an employment-based application, or the date on which the family-sponsored immigrant visa petition is filed with USCIS in the case of a family-sponsored petition.  A visa may be issued to an intending immigrant if his priority date is earlier than the date appearing in the Visa Bulletin table for the applicable visa category.

Previously, a green card applicant had to wait to file his application until his priority date was current, meaning that a visa was available for issuance by the DOS.  The recent changes announced by the USCIS implement President Obama's November 20, 2014, executive action on immigration accountability.²  The procedural change will permit intending immigrants to file their green card applications earlier.

The Visa Bulletin will now comprise two charts per visa preference category.  (See, for example, employment-based preference charts below from the October 2015 Visa Bulletin).³ The first table applies to applications with "Final Action Dates."  This table determines when the immigrant visa is available for issuance.  When a priority date is current pursuant to the Final Action Date chart, a final decision may be rendered on the green card application.  The second table in the newly revised Visa Bulletin lists the "Dates for Filing Applications."  As the name suggests, green card applicants will now be able to file their applications when their priority dates are current.  The practical effect of these changes is not to shorten or eliminate the length of time an individual must wait to receive his green card, but rather to shorten the amount of time an individual must wait to file his application.

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

The ability to file the green card application earlier translates into very specific benefits to the foreign national.  As part of the green card application process, an individual may apply for and obtain employment authorization and a travel document known as advance parole.  Both documents may be renewed while the green card application is pending, even if not yet approved.  Dependent family members of the primary intending immigrant are also entitled to apply for these benefits.

A work authorization card provides foreign nationals with greater financial stability in the United States because applicants will now be able to enter the workforce earlier than before (if not already authorized) given the advancement of the green card application filing dates under the new procedures. The issuance of the employment authorization card will obviate the need to apply for an H-1B visa.  It is advisable to evaluate the employee's specific facts to make sure that is the best course of action.  

Additionally, international travel is less burdensome because the advance parole document permits a foreign national to seek admission to the United States at a port of entry without the need for applying for a visa stamp at a U.S. consulate abroad.  Without advance parole, a foreign national generally must possess a non-immigrant visa stamp in her passport in order to seek admission to the United States. 

From an employer's perspective, this means that after 180 days of filing the green card application, the employee will be able to seek employment with another employer. Therefore, employers should take steps to manage the possibility of greater employee mobility. 

Beginning on October 1, 2015, those foreign nationals with current priority dates under the Dates for Filing Application tables may file their green card applications with the USCIS.