On September 9, 2015, the U.S. Department of State (DOS) released the October Visa Bulletin. This is the first Visa Bulletin of the Fiscal Year 2016, which for the federal government runs from October 1, 2015 through September 30, 2016.

On September 9, 2015, the U.S. Department of State (“DOS”) released the October Visa Bulletin. This is the first Visa Bulletin of the Fiscal Year 2016, which for the federal government runs from October 1, 2015 through September 30, 2016. The format for the new Visa Bulletin differs significantly from the format used in the past in that DOS is now using separate cutoff dates for filing vs. approving immigrant visa applications. Historically, DOS has always used a single cutoff date. For example, in the September 2015 Visa Bulletin, the cutoff date for the Employment-Based Third Preference category for those born in India is December 22, 2004. That date is used to determine whether someone is eligible to file an I-485 application with USCIS as well as to direct both USCIS (which adjudicates applications for adjustment of status to permanent residency within the U.S.) and DOS (which issues immigrant visas at US Consular posts abroad) as to which applications for immigrant visas may be approved. Thus anyone born in India with an EB3 priority date prior to December 22, 2004 can, for the month of September, file an adjustment of Status application. Similarly, USCIS can approve that application this month or a consular officer could issue an immigrant visa to anyone with a priority date prior to December 22, 2004.

The October Visa Bulletin makes a sharp departure from this format, listing separate cutoff dates for filing of an adjustment of status application vs. issuance of the immigrant visa or approval of the I-485. For example, the cutoff date for filing an I-485 for EB3 India in the October Visa Bulletin is July 1, 2005, whereas the cutoff date for immigrant visa issuance in the same classification is several months earlier, at March 8, 2004.

This separation of cutoff dates for filing of I-485s vs. immigrant visa issuance is beneficial for people whose priority dates are not current. It allows them to file their I-485 applications sooner and thus qualify for ancillary benefits such as:

• Applying for Employment Authorization Documents (“EAD cards”) and Advance Parole travel authorizations concurrently with their I-485 applications. This allows both the principal I-485 applicant and his or her dependent family members work and travel authorization while awaiting adjudication of their applications.
• Filing of the I-485 application also opens up the possibility of qualifying for Permanent Portability under AC21, i.e., the ability to change jobs based on an approved I-140 and an I-485 that has been pending for 180 days, without having to file a new permanent residency application.

Despite these benefits of the new format, it raises a significant legal question: Which cutoff date—the date for filing an application or the date for immigrant visa issuance—is considered the date on which a visa number becomes available? This is significant for two different legal issues:

• For application of the Child Status Protection Act (“CSPA”). Section 3 of the CSPA applies to the derivative children of employment-based immigrants. It contains a formula designed to offset the age of derivative children on the date a visa number becomes available, by the number of days the parent's petition was held up due to USCIS processing delays. When applied, the formula yields the “CSPA age” of the child, an age that is determined on the date a visa number becomes available, and that, once established, remains locked in, so long as the child seeks to obtain an immigrant visa within a year of a visa number becoming available. The formula is:
  
  Age on date visa becomes available – number of days I-140 was pending = CSPA Age
  
  The question raised by the new Visa Bulletin format is, what is the actual date a visa number becomes available? Is it the cutoff date listed for I-485 filing purposes or the cutoff date for immigrant visa issuance? This question has yet to be answered.
• For termination of immigrant visa registration. Section 203(g) of the Immigration and Nationality Act provides, in the pertinent part, that, “The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa” This means that anyone who fails to file an application for adjustment of status with USCIS or to apply for an immigrant visa at a U.S. consulate abroad within one year of a visa becoming available will become ineligible to obtain permanent residency on the basis of the underlying approved immigrant petition, and that USCIS will revoke the previously approved petition. Historically the one year period during which a foreign national remained eligible to pursue permanent residency began to run on the date on which his priority date became current per the Visa Bulletin. However, it is now unclear, given the new Visa Bulletin format, when a person's priority date becomes current. Is it the date on which he can file an I-485 or is it the date on which USCIS or DOS can approve his application for an immigrant visa?

One fact which may help to clarify the answer to this question of when a visa number becomes “available” under the new Visa Bulletin format is the fact that the cutoff date listed for filing purposes applies only to individuals who are inside of the United States and filing an application for adjustment of status. The cutoff date for filing purposes is irrelevant to consular processing applications. For those cases a visa number need not be available in order to file the application, but only for issuance of the immigrant visa. Given the fact that the filing cutoff date listed in the Visa Bulletin applies only to a portion of immigrant visa applicants, it would appear that that date is not the actual date on which a visa number becomes available. Moreover, it would appear logical to conclude that a visa number is not truly available until it can be issued to an applicant.

If that turns out to be the government interpretation, it will cut both ways for CSPA applicants. On the one hand, it will be good for children who are eligible for CSPA protection to have the later cutoff date considered the date on which a visa number becomes available because that will extend the period during which the applicant may “seek to acquire” an immigrant visa and therefore protect some children who might otherwise not have qualified. But on the other hand, it will be detrimental to many applicants because it will alter the calculation of a child's age so that the “CSPA age” is older than it otherwise would have been.

For purposes of determining whether the government should terminate immigrant visa registration under INA § 203(g), use of the later cutoff date (i.e., the date on which the government may issue an immigrant visa) can only be beneficial, as it will delay government action in terminating registration and revocation of the underlying immigrant petition.