Important Considerations for Employers and Employees under new Visa Bulletin Framework

In September 2015 the U.S. Department of State (DOS) and U.S. Citizenship and Immigration Service (USCIS) jointly announced a new framework for foreign national beneficiaries in the employment based and family based visa preference categories.

This new framework is implemented through the new Visa Bulletin which took effect on October 1, 2015. The new Visa Bulletin provides two separate charts for each of the Employment Based and Family Based visa preference categories.

The new Visa Bulletin now identifies 1) the Priority Dates that are current for “filing” an application for adjustment of status or immigrant visa (Green Card/Lawful Permanent Residence) and 2) the Priority Dates for which visas are actually available and beneficiaries can have their applications for adjustment of status or Immigrant Visa approved.

On the Employment Based side, the new system allows employees who are the beneficiaries of I-140 Immigrant Visa petitions filed by their U.S. employers, and currently employed in lawful nonimmigrant status in the United States to file for adjustment of status many years before their Green Cards will actually be issued.
This new framework has several potential advantages and disadvantages for the employer and the employee alike.

Once the employee files his or her application for adjustment of status in the United States, the employee is eligible to receive an Employment Authorization Document (EAD) and Advance Parole (Travel Permission) that authorizes employment and international travel while the application for adjustment of status is pending with the USCIS.

Employer Considerations

• Employer Support Letter: In order for an employee to file an application for adjustment of status, he or she must be the beneficiary of a pending or approved I-140 Immigrant Visa petition filed by the employer. It is common practice for the employer to confirm and verify that the future employment position remains available to the employee once the application for adjustment of status has been approved.
• Portability: Once an employee has filed for adjustment of status based on an approved I-140 Immigrant Visa petition filed by the employer, and that application has been pending for more than 180 days with the USCIS, the employee can “port” (transfer) the approved I-140 Immigrant Visa petition from the sponsoring employer over to a new employer in a “same or similar” position. Thus, once pending for 180 days or more, the I-140 petition can be taken by the employee and used to obtain a green card with a new employer. This could be considered as a disadvantage or risk to the employer that filed the initial I-140 and has invested significant financial resources into the lawful permanent residence case for a particular employee. Of course, the employer should also be aware that even if the employee remains employed with the employer all the way through the adjustment of status process, once the employee receives his or her green card, there is no legal requirement that the employee remain employed with the sponsoring employer.
• Employees Authorized for Employment on EAD rather than Nonimmigrant Status: Once an employee has filed for adjustment of status with USCIS and has received and EAD, he or she no longer requires a non-immigrant visa (i.e., H-1B, L-1, etc.) in order to work in the United States. The employee may work under a valid unexpired EAD without the need for sponsorship for a nonimmigrant visa or status in the United States. Since the employee no longer requires a nonimmigrant status in order to work in the U.S., an employer may choose not to petition USCIS for an extension of the employee’s H-1B or L-1 status in the United States. This could be seem as an advantage to employers who are no longer obligated to sponsor these employees for non-immigrant status, thus relieving employers of the costs and fees associated with such petitions and of the Department of Labor attestation requirements associated with H-1B petitions.

Employee Considerations

• Risks of abandoning Nonimmigrant status: Notwithstanding the fact that an employee with a pending adjustment of status application is eligible for an EAD and therefore eligible for employment without any valid nonimmigrant status, the employee may be reticent to let go of his or her valid nonimmigrant status (generally H-1B or L-1). This is because if there is a problem with the employee’s eligibility for lawful permanent residence at the time the adjustment of status application is actually adjudicated (years in the future), if he or she is no longer in valid non-immigrant status, he or she will not be able to return to a non-immigrant status without first departing the United States and returning on a valid non-immigrant visa (if eligible). Further, in the event that there is a problem with the application for adjustment of status, if the employee has been out of valid nonimmigrant status for more than 180 days, he or she could be subject to a three or ten year bar on return to the United States after their departure. Thus, risk adverse employees may continue to request that their employers continue to sponsor their nonimmigrant status through the date of adjudication of their application for adjustment of status.
• Benefits for Dependents: A major advantage for employees filing applications for adjustment of status under the new Visa Bulletin is that the employees’ spouse and unmarried children under age21 are able to file their own applications for adjustment of status as dependents of the sponsored employee. Dependent spouses and children are also eligible for EAD and Advance Parole travel permission while their applications for adjustment of status are pending.

 For more information, please contact Kolko & Associates, P.C.