USCIS to Start Monthly Determination on Filing Date Eligibility for I-485

The last few weeks have brought a lot of attention to the way the Visa Bulletin cutoff dates are allocated and how USCIS uses the dates to accept I-485 filings.   Starting with the initial version of the October 2015 Visa Bulletin in early September, and throughout the subsequent October 2015 Visa Bulletin revision and litigation, the discussion has been focused on what kind of I-485 adjustment of status applications can be filed with USCIS especially in connection with the “Filing” dates category recently introduced.      As a result of (and also contributing to) the “confusion,” USCIS has just announced that going forward, each month, they will be making their own determination as to whether they will honor the Filing dates published in each Visa Bulletin.

Mechanics of USCIS Determination and Announcement Regarding Each Visa Bulletin I-485 Filing Dates

USCIS has announced that starting with the November 2015 Visa Bulletin,  they will be evaluating the whether there are more immigrant visas available for a fiscal year than there are known applicants for such visas based on the dates published in that month’s Visa Bulletin.    This means USCIS will agree to accept the Visa Bulletin “Filing” dates for the purpose of allowing I-485 applications to be filed if (and only if) USCIS determines that there are more available visa numbers than there are known (we assume based on a number of I-485 pending cases) applicants.

According to USCIS, they will be making a determination within a week of the Visa Bulletin issuance and they will be posting their decision it to their website.  As of now, it appears that USCIS will simply state whether they will honor the “Filing” dates or the “Approval” dates for the purpose of accepting I-485 applications.    USCIS confirms, however, that their default position is that unless indicated otherwise, the “Approval” dates will control who can file I-485 applications.

What Does This Change Mean for Future I-485 Applicants?

In practical terms, this change in USCIS’s process means that permanent residency applicants who aim to file I-485 adjustment of status will have to wait for (1) the Visa Bulletin to be issued (usually around 8th to 10th of the month) and, if they will be current under the “Filing” dates, they will need to (2) wait for another week or so for USCIS to indicate whether USCIS will honor the Visa Bulletin’s “Filing” dates or they will stick to their default “Approval” dates to determine eligibility to file I-485.

Applicants who have not filed I-485 and whose priority date will be current under the “Approval” dates will be then able to start preparing for their I-485 adjustment of status filing.   However, applicants who are current under the “Filing” dates will have to wait an additional week in order to find out whether they can file I-485.     Understandably,  this new system by USCIS will create additional confusion and anxiety among many applicants.

CILG to Provide Updates and Clear Guidance to Applicants

As USCIS is changing their system to determine I-485 eligibility, so are we adjusting our practice of providing timely and useful information to our clients and readers.    We will continue to provide Visa Bulletin alerts immediately once a Visa Bulletin is issued (please sign up for our Weekly Newsletter or Visa Bulletin alert to do so or check the Visa Bulletin section of our website).    We will also start providing an immediate update on USCIS’s decision as to whether to accept the “Filing” dates as soon as it is published towards the middle of each month.

Further Updates and News

We stand with the tens of thousands of applicants who are affected by the Visa Bulletin reforms (seemingly mostly negative) over the last few weeks.    We do not believe that USCIS’s decision to create their own independent (and delayed) determination on whether they should accept the “Filing” dates for I-485 filings helps the affected applicants navigate what is already a complex system.    We are hopeful that USCIS and DOS will be able to come up with a solution which simplifies and expedites the application process, as opposed to making it more complex, confusing and slow.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.