Published September 21, 2015
The centerpiece of President Obama’s most recent immigration related Executive Order was a measure providing employment authorization for millions of long time undocumented residents. This portion of the Executive Order has been held up in the federal courts however, with a ruling that the President exceeded his authority in enacting this new program. Another less discussed feature of the President’s order is a provision allowing for an earlier eligibility for prospective U.S. based permanent resident applicants to file their I-485 applications for adjustment of status. This aspect of the President’s order, which was not the subject of judicial injunction and is set to go into effect on October 1, translates into the issuance of employment authorization to eligible adjustment of status applicants far sooner than they would otherwise qualify for such a benefit.
Importantly, this new directive only applies to beneficiaries of Family and Employment Preference Visa Petitions – where the annual supply of visas is limited. The directive does not impact “Immediate Relative” petitions (spouses of U.S. citizens, under 21 year old children of U.S. citizens, or parents of adult U.S. citizens) where no annual limits – or other, more significant restrictions – for green card issuance are at play. The new immigrant visa bulletin impacting citizens of the Philippines for October, 2015 is once again printed below.
Who benefits from this aspect of the Executive Order?
Foreign nationals residing in the U.S.:
A) — in lawful nonimmigrant (temporary visa) status OR
B) — who are out of status but who were the beneficiaries of a family or employment/labor based immigration filing prior to April 30, 2001 or January 14, 1998 (establishing 245(i) eligibility)
AND –
— who have had their family (I-130) or employment based (I-140) visa petition approved,
AND –
whose priority dates (initial filing date) is prior to newly established, more liberal cut-off dates.
Individuals meeting these requirements can submit their I-485 applications effective October 1, 2015 and qualify for almost immediate issuance of Employment Authorization and Advance Parole Documents (the latter allowing for reentry following international travel).
So, here is an example of one of the more common ways a prospective adjustment of status might benefit from this new provision:
Jenny, a native and citizen of the Philippines, entered the U.S. on an F-1 student visa in 2012 to study Registered Nursing. On August 1, 2014, immediately after she graduated and passed her RN licensure exam (and obtained her Visa Screen certification), Jenny was the beneficiary of a nursing home’s I-140, Employment Based, Third Preference immigrant worker petition. The petition was approved 3 months later, but again, with a priority date (filing date) of August 1, 2014. Jenny has since maintained her F-1 status throughout her stay in the U.S, and as such is eligible, as of October 1, 2015, to proceed with an I-485 application for adjustment of status, and where she will be issued an employment authorization and travel document within 90 days and have their green card processing completed entirely in the U.S. That is because her priority date is prior to the more generous, later cutoff date of January 1, 2015 – in effect as of October 1 (for EB-3, Philippines – as noted in the link below)- as opposed to actual visa availability for individuals with priority dates before the cut-off date of January 1, 2007 (for EB-3 Philippines – as noted on the attached).
Current visa bulletin referenced above: http://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html
PUBLISHED September 21, 2015– “IMMIGRATION LAW FORUM” Copyright © 2015, By Law Offices of Richard Hanus, Chicago, Illinois