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  • Article: THE NEW VISA CHARTS – A PRIMER IN INTERPRETING THEM, HISTORICAL PERSPECTIVE, USE IN FORECASTING DEMAND, HOW THE NEW SYSTEM WILL WORK, AND THEIR ADDITIONAL BENEFITS TO ALL. Part 5 of 5. By Alan Lee, Esq.

    THE NEW VISA CHARTS – A PRIMER IN INTERPRETING THEM, HISTORICAL PERSPECTIVE, USE IN FORECASTING DEMAND, HOW THE NEW SYSTEM WILL WORK, AND THEIR ADDITIONAL BENEFITS TO ALL. Part 5 of 5

    by


    Visa Bulletin - October 2015

    A. Application Final Action Dates for
    Family-Sponsored Preference Cases

    B. Dates for Filing Family-Sponsored
    Visa Applications

    Family-Sponsored

    All Chargeability Areas Except Those Listed

    CHINA – mainland Born

    INDIA

    MEXICO

    Philippines

    Family-Sponsored

    All Chargeability Areas Except Those Listed

    CHINA – mainland Born

    INDIA

    MEXICO

    Philippines

    F1

    15JAN08

    15JAN08

    15JAN08

    22NOV94

    01JUN01

    F1

    01MAY09

    01MAY09

    01MAY09

    01APR95

    01SEP05

    F2A

    15APR14

    15APR14

    15APR14

    01MAR14

    15APR14

    F2A

    01MAR15

    01MAR15

    01MAR15

    01MAR15

    01MAR15

    F2B

    15JAN09

    15JAN09

    15JAN09

    01AUG95

    01OCT04

    F2B

    01JUL10

    01JUL10

    01JUL10

    01JAN96

    01JAN05

    F3

    22MAY04

    22MAY04

    22MAY04

    08JUN94

    01OCT93

    F3

    01APR05

    01APR05

    01APR05

    01MAY95

    01AUG95

    F4

    08FEB03

    08FEB03

    08FEB03

    22MAR97

    01MAY92

    F4

    01FEB04

    01FEB04

    01FEB04

    01MAY98

    01JAN93

    A. Application Final Action Dates for
    Employment-Based Preference Cases

    B. Dates for Filing Employment-Based
    Visa Applications

    Employment-Based

    All Chargeability Areas Except Those Listed

    CHINA – mainland Born

    INDIA

    MEXICO

    Philippines

    Employment-Based

    All Chargeability Areas Except Those Listed

    CHINA – mainland Born

    INDIA

    MEXICO

    Philippines

    1st

    C

    C

    C

    C

    C

    1st

    C

    C

    C

    C

    C

    2nd

    C

    01JAN12

    01MAY05

    C

    C

    2nd

    C

    01JAN13

    01JUL09

    C

    C

    3rd

    15AUG15

    15OCT11

    08MAR04

    15AUG15

    01JAN07

    3rd

    01SEP15

    01OCT13

    01JUL05

    01SEP15

    01JAN10

    Other Workers

    15AUG15

    01JAN06

    08MAR04

    15AUG15

    01JAN07

    Other Workers

    01SEP15

    01JAN07

    01JUL05

    01SEP15

    01JAN10

    4th

    C

    C

    C

    C

    C

    4th

    C

    C

    C

    C

    C

    Certain Religious Workers

    U

    U

    U

    U

    U

    Certain Religious Workers

    C

    C

    C

    C

    C

    5th Targeted Employment Areas/Regional Centers

    C

    08OCT13

    C

    C

    C

    5th Targeted Employment Areas/Regional Centers

    C

    01MAY15

    C

    C

    C

    5th Pilot Programs

    U

    U

    U

    U

    U



    Part 5 - Their Additional Benefits To All

    In coming out with the “B” charts and redefining the point of “visa availability,” the State Department put more order into its system and has ended its reliance on guesswork in assessing visa demand, especially with U.S.C.I.S. cases for adjustment of status. With a clear vision into a once darkened tunnel, the Visa Office can stop the wild gyrations of visa movements from month-to-month, establish a more orderly flow, and concentrate its efforts on using up all the visa numbers which are available during a fiscal year. This is important as over the years, the State Department has not been able to calculate and allocate well enough the number of remaining available visas throughout the fiscal year and left hundreds of thousands of visas on the table, which were not able to be reallocated and have thus far been lost. The White House briefing of November 20, 2014, spoke to this in saying that agencies should look at modernizing the visa system, with a view to making optimal use of the numbers of visas available under law, and the White House paper, “Modernizing & Streamlining Our Legal Immigration System for the 21st Century” in July 2015, further expanded this in saying that “State will increase monthly visa allocation totals during the first three quarters of the fiscal year to the degree permitted by law in order to ensure that fewer numbers are left for the final quarter, thereby ensuring that visa numbers issued are as closely aligned with statutory mandates as possible.” Every visa number counts and the proper allocation of all available visa numbers will shorten the time that people immigrating through the preference categories through adjustment or consular processing will have to wait. The White House paper also spoke to the ancillary benefits that would be accorded to those able to file adjustment of status applications under the new “visa availability” in stating that “These changes will further allow more individuals seeking LPR status to work, change jobs, and accept promotions.” When filing form I-485 properly, applicants are eligible for open market employment through filing form I-765 Application for Employment Authorization, and in most cases advance parole to travel in and out of the U. S. during the pendency of the adjudication through Form I-131 Application for Travel Document. There is no additional filing fee for such applications as long as the I-485 fee is paid. Changing jobs is allowed under INA §204(j) for employment based cases where the I-140 petition has been approved and the I-485 pending for 180 days so long as the new job is in the same or a similar occupational classification. In this regard, however, U.S.C.I.S. should issue a memo implementing the Administration’s desire that EB applicants be allowed to accept promotions without having to go through the labor certification or immigrant visa petition process again. The only guidance so far in this writer’s recollection has been U.S.C.I.S.’s restrictive interpretation in “Questions about Same or Similar Occupational Classifications under the American Competitiveness In the 21st Century Act of 2000 (AC 21)” when it said that it would evaluate these situations on a case-by-case basis and that the job duties for each position, the SOC codes for each position, and any difference in the wages would be the determining factors as to whether individuals would remain eligible. Finally those who have children close to the age of 21 may certainly be benefited as the counting of age freezes when visa availability is reached. For example, a child who after all the calculations under the Child Status Protection Act (CSPA) would turn 21 under the F-2A category because his priority date was January 1, 2015, and the September chart only had availability for priority dates before March 1, 2014, might be reprieved under the October chart in which visa availability is declared for those with priority dates before March 1, 2015.

    The new “B” charts are a game changer in the field of immigration law, and the writer only hopes that U.S.C.I.S. will be generous in deciding when they apply; that the State Department throw out as wide a net as it can in considering dates for the “B” charts; that better coordination exist between the two agencies to prevent situations of disagreement over the “B” chart dates causing revisions in the visa bulletin for the same month after issuance; and that eligible applicants take full advantage of the charts and their benefits.

    Part 1 can be found here.

    Part 2 can be found here.

    Part 3 can be found here.

    Part 4 can be found here.

    Reprinted with permission.


    About The Author

    Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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