Thousands of Foreign Nationals Can Take Advantage of Advanced Priority Dates & File for Green Cards in October

Every month, the Department of State publishes a Visa Bulletin listing which foreign nationals can apply for their final step in the green card process (either the I-485 filed with the US Citizenship & Immigration Service or a Consular Processing application filed through a US Consulate or Embassy abroad).

The Visa Bulletin has charts for family-based and employment-based green card categories and lists green card availability by filing category (EB-2 or F-2B for example) and by country of chargeability (which is usually the country of birth). Typically, Indian and Chinese foreign nationals applying for employment-based green cards have been backlogged for several years.  However, the October, 2020 Visa Bulletin significantly advanced the availability of green cards for most categories, allowing thousands of foreign nationals to be able to file their last step in October.

The visa bulletin charts are based on priority dates.  The priority date is the date the I-130 was filed for family based applications, and the date the PERM was filed (or the I-140 was filed for categories not requiring a PERM) for employment-based categories.

See below for how the most common categories have advanced in the October, 2020 bulletin.

As the chart shows, the EB-3 Indian national category advanced the most, moving from only accepting priority dates from October, 2009 and earlier to now accepting them from January, 2015 and earlier. This opens the way for many Indian foreign nationals to proceed with their green card cases.

In cases where a foreign national has an approved EB-2 I-140 case, and their priority date has become current in the EB-3 category under the October, 2020 visa bulletin, the foreign national and employer should explore refiling the I-140 under the EB-3 category and concurrently filing the I-485 if they are in status in the US.

Why Did the Dates Advance?

The US Government limits the number of green cards it issues each fiscal year, with annual quotas set by country and category. Unused green card numbers from the prior fiscal year can carry over to the next fiscal year. October 1 is the start to the new US government fiscal year. COVID-19 reduced the usage of family-based green card applicants because Consulates were closed. Travel bans enacted by the Trump administration reduced usage of immigrant visa numbers as well. As a result, a significant number of green card (immigrant visa) numbers carried over to the October 1 fiscal year start, allowing the government to advance the priority dates to allow for more green card applicants.

What Is the Application Deadline?

All green card applications taking advantage of the October, 2020 priority dates must file their I-485’s in October. If the applicant is downgrading from EB-2 to EB-3, the I-140 must be filed in October as well.

What If You Miss the October Deadline?

It is expected that thousands of I-485 applications will be filed in October to take advantage of the newly advanced priority dates. This makes it likely that priority dates will retrogress in November, possibly going back to dates similar to the September dates. Thus, it is important that foreign nationals and employers explore their options now and file in October.

Added Benefit: EAD Instead of Work Visa Extensions

Besides obtaining the green card faster, there is an additional benefit to filing for the green card as soon as you are able – obtaining an EAD/AP and skipping the work visa extension. An I-485 can take one to three years to process. Usually, that means foreign nationals have to continually extend their work visas (ex: H-1B’s) while the green card application is pending. But, there is another option. When a foreign national files an I-485 to adjust their status to a green card holder (immigrant), they can simultaneously file for an Employment Authorization Document (EAD) for work authorization and Advance Parole (AP) for travel authorization. EAD’s generally and currently take about 4 months to process. Thus, depending on work visa expiration dates, a foreign national can apply for an EAD/AP with his/her I-485, and an employer can skip the time and cost of work visa extensions so long as the EAD is approved before the work visa authorization expires. Regarding travel outside the US, the foreign national must have the AP prior to departing the US because traveling outside the US while the AP is pending usually results in a denial of the AP for abandonment of the petition. For that reason and also in case there is any problem with the I-485 process, some employers opt to continue to extend the work visa when that is an option.

Given the short timeline, employers and foreign nationals should explore their options now to determine whether they can and should file for their green cards in October.