New Policy Aids Workers Stuck in Green Card Backlogs

By Roy Maurer Sep 17, 2015

Starting Oct. 1, 2015, foreign workers seeking permanent U.S. residency can apply to have their status adjusted and to receive employment authorization documents before their waitlist priority dates become current. The change will give foreign nationals in backlogged employment-based (EB) preference categories the ability to travel and change employers without jeopardizing their green card status.

U.S. Citizenship and Immigration Services (USCIS) announced this change as well as changes for determining adjustment-of-status eligibility for individuals with employment-based petitions in the Department of State’s (DOS’s) October visa bulletin—a publication that indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date..

The agency said it will be able to more accurately predict overall immigrant visa demand—helping ensure that the maximum number of employment-based visas are issued annually—and minimize month-to-month fluctuations in final action dates.

The revisions were telegraphed in President Barack Obama’s November 2014 executive actions on immigration and detailed in a July 2015 White House report.

“This is, without a doubt, the most positive executive action to benefit the legal immigration system that I have seen in the 40 years that I have been practicing immigration law,” said Carl Shusterman, an immigration attorney and owner of the Law Offices of Carl Shusterman, based in Los Angeles. “For many persons whose priority dates have been backlogged for years, this new policy will give them the freedom to change employers without harming their ability to become green card holders.”

Before this change, applications for adjustment of status could only be filed in a preference-based case if the applicant’s priority date on the waiting list was earlier than the cut-off date for issuing a visa in that particular category. Certain categories of employment preference—specifically from China, India and the Philippines—are significantly backlogged, and individuals wait for years before they can file to adjust their status or receive a green card.

Format Change

The DOS bulletin now has two charts per visa preference category instead of one. The first chart represents dates when visas may be issued and adjustment of status may be approved, and the second chart shows the earliest dates when applicants may apply and file for adjustment of status. “This means that certain individuals can file their adjustment-of-status applications months or even years before their applications can actually be approved and permanent residence granted,” said Yova Borovska, an immigration attorney in the Tampa, Fla., office of Buchanan, Ingersoll & Rooney.

While the change in format does not affect when workers receive their green cards, many will now be able to file applications to adjust their status to permanent residency years before a green card number becomes available, clarified Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. He added that concurrently filed applications for employment authorization and travel authorization can be immediately processed, giving employees those benefits much earlier in the process.

Job Mobility

The new rule also allows workers with approved employment-based visa petitions and status-of-adjustment applications pending for 180 days or more to change employers if their new employment is in the same or a similar occupation.

“Being able to file an adjustment-of-status application earlier is important to foreign nationals because they can secure employment authorization and travel documents while they await final action on their application,” said David Grunblatt, a partner and head of the Immigration & Nationality Group at law firm Proskauer. “This change affords them greater flexibility and job mobility while stuck in long visa backlogs.”

Storch noted that there’s a chance that some employees might leave their host employer earlier than they would have otherwise, but there’s also the possibility that employers will get applicants for open positions who are in the same situation somewhere else. “In the end, the effect of increased job portability likely evens out,” he said.

The policy change may reduce the burden on employers also, according to Borovska. She pointed out that employers would not have to continually file temporary visa extensions for workers waiting for their employment-based applications to be “ripe for approval.”

Workers also receive the ability to file adjustment-of-status applications, along with concurrent benefits, for spouses and children, Storch added. “This is a relief for many employees whose spouses might not currently have authorization to work in the United States.”

Shusterman provided the following example: Vijay is a systems analyst from India who is in the EB-2 category for advanced degreed professionals, which is currently backlogged to May 1, 2005, for persons born in India. Vijay began working for Employer A on an H-1B visa in 2008. Employer A filed an application for permanent residency for Vijay in 2009, which was approved. Since the time of his approval, Vijay has been unable to change jobs without jeopardizing his green card application. If he changes jobs before getting his green card, his new employer would have to obtain new approvals for permanent residency in order for him to retain his 2008 priority date.

Under the new rules, anyone from India with an EB-2 priority date before July 1, 2011, who is otherwise eligible can apply for adjustment of status in October 2015. Under the 180-day portability rule, in April 2016, Vijay can leave Employer A and take a job with Employer B as long as the new job is in the same or a similar occupation. Employer B will not have to submit any new applications or visa petitions for Vijay.

“For Vijay and for hundreds of thousands of professionals from around the world who work in the U.S. using temporary working visas, this is a tremendous benefit,” Shusterman said.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy


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