The proposed rules amend existing regulations to incorporate USCIS policies that have been put in place since October 2000, the date of enactment of the America Competitiveness in the Twenty First Century Act (AC21). To date, the first rules that USCIS has proposed for AC21 would do the following:

• Clarify that a foreign national’s place in line waiting for a visa number, known as a Priority Date, is established on the date that a labor certification is filed with the Department of Labor. If no labor certification is needed, the priority date is the date on which USCIS receives the employer’s petition properly signed, together with the required fee.
• State that employment based petitions filed in the EB-1, EB-2 or EB-3 category provide a foreign national with a Priority Date for any subsequently filed EB-1, EB-2 or EB-3 petition, and if multiple immigrant visa petitions are filed for the same person, the foreign national beneficiary is entitled to the earliest priority date.
• Clarify that a Priority Date on an employment based immigrant visa petition is lost when USCIS revokes the petition for fraud or willful misrepresentation, or upon DOL revocation of the accompanying labor certification. Unless revoked, an employment-based petition is valid indefinitely.
• Provide employment authorization eligibility for EB-1, EB-2 or EB-3 beneficiaries if four conditions are met: 1) Their petition has been approved; 2) Their status is E-3, H-1B, H-1b1, O-1 or L-1; 3) No immigrant visa number is available in the category sought; and 4) USCIS chooses to exercise its discretion based on the person’s showing of compelling circumstances. Spouses can obtain employment authorization, too, if the principal beneficiary has been granted employment authorization.
• Provide a regulatory 10-day grace period to depart at the conclusion of their authorized stay in E-1, E-2 E-3, H-1B, L1 or TN classifications, and provide foreign nationals in any of those classifications who cease to continue their employment a one-time period of 60 days without losing status. Such persons remain eligible to file an extension petition during that period.
• Eliminate the regulatory requirement to adjudicate an Employment Authorization Document (EAD) within 90 days of filing, eliminate the current regulatory requirement that USCIS issue interim an EAD when EAD adjudication is delayed, and provide an automatic extension of EADs for up to 180 days for an applicant who has filed to renew his or her EAD.

For October, 2015, the Filing Date in family sponsored preference categories is approximately 1 year sooner that the Final Action Date.  The exception is the Philippines, which permits filings 4 years sooner than the Final Action Date.

In the employment based preference categories, EB2s for China have a Filing Date that is 2+ years sooner than the Final Action Date.  The biggest difference between Filing Date and Final Action Date is for EB3 Other Workers from the Philippines, and then EB2s for India.  The former category has a Filing Date that is 8 years sooner than the Final Action Date.  The latter has a Filing Date 6+ years sooner than the Final Action Date.  Significantly, EB5s for China has a Filing Date of 1.5+ years sooner than the Final Action Date.   Highlights of other categories follow:

Category                  Country   Filing Date          Final Action Date

EB3                               China        10/01/2013             10/15/2011
EB3                               India         07/01/2015             03/08/2004
EB3                               Mexico     09/01/2015             08/15/2015
EB3 Other Worker    China        01/01/2007             01/01/2006
EB3 Other Worker    India         07/01/2005             03/08/2004
EB3 Other Worker    Mexico     09/01/2015              08/15/2015
EB3 Other Worker    Philippines   01/01/2015          01/01/2007
EB5                               China        05/01/2015              10/08/2013

Please see http://www.travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html for the complete October, 2015 Visa Bulletin.

Previously, the Visa Bulletin listed only a Priority Date, that is, a cut-off date of the first applicant who could not be reached within the numerical limits for a specific month.  Now, Priority Date has been re-named Application Final Action Date (or “Final Action Date”).  Added is a new date, Dates for Filing Applications (or“Filing Date”), that is, the date on which an applicant can file for adjustment of status.  These changes apply to both family based and employment based immigrant visa categories.

A key benefit for adjustment applicants is the eligibility to file for employment authorization and travel permission while their adjustment application pends.  In addition, for many employment based categories, once the adjustment application has been pending for 6 or months, the applicant can port to a different employer in the same or similar job classification.  These are welcome changes to many applicants in heavily backlogged visa categories.

Although an applicant can file for adjustment of status in advance of the Final Action Date, USCIS cannot approve the application until a visa number actually becomes available.  In reading the Visa Bulletin, applicants filing for adjustment must use the Final Action Date unless the Visa Bulletin states that the Filing Date can be used.   For the month of October, 2015, the Visa Bulletin references a USCIS determination that the Filing Date can be used in determining whether the applicant can submit their application or applications to USCIS.  Each month thereafter, USCIS will make a determination regarding adjustment projection numbers and the Visa Bulletin will state whether the applicant can use the Filing Date or must use the Final Action Date.

Please see http://www.travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html for the October, 2015 Visa Bulletin.

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