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Yesterday, the Department of State announced in its monthly visa bulletin that visas will be available for spouses and children (under 21) of permanent residents starting August 1, 2013. This announcement relieves a large backlog, which just last month was over one and a half years. Practically speaking, this means that the spouses and children of permanent residents may file for adjustment of status to permanent residence or seek immigrant visas on August 1, 2013.

Visas for the spouses and children of permanent residents are numerically limited. There is no such limitation on the number of visas for the spouses and children of United States citizens. Due to the cap on the number of visas available to the spouses and children of permanent residents, a backlog has developed in that category as demand has exceeded supply. People seeking visas as the spouse or children of a permanent resident had to wait for a visa to become available to them. Often they waited abroad. If they were in the United States, they would be able to file I-130 immigrant petitions, but could only file applications for adjustment of status (form I-485) once a visa became available. Of course, it is the I-485 which gives employment authorization and is the vehicle for status in the U.S.

But, on July 10, 2013, the State Department stated that visas will be “current” for the spouses and children of permanent residents on August 1, allowing those individuals to file for green cards.

The mechanism of the State Department’s announcement is the monthly Visa Bulletin. The Visa Bulletin communicates the status of visa availability for all the various visa categories under U.S. immigration law. Family based immigration is broken down into several categories. These categories are known as “preferences.” At the top of the heap, in fact, so high that they are not called preferences, are “immediate relatives,” the spouses and children of U.S. citizens. The remaining categories (the preferences are as follows):

First preference (F1)- the unmarried sons and daughters of U.S. citizens
Second preference (A) (F2A)- the spouses and children of permanent residents
Second preference (B)(F2B)- the unmarried sons and daughters of permanent residents
Third preference (F3)- married sons and daughters of U.S. citizens
Fourth preference (F4)- brothers and sister of U.S. citizens

Every month, the Visa Bulletin states how backlogged these categories are by nationality. The Bulletin states the date that an I-130 petition had to have been filed in order to receive an immigrant visa or apply for adjustment of status. If the Visa Bulletin indicates that a preference is current, it indicates it with a “C.” Immediate relatives, since that category is not limited, may file an I-130 immigrant petition simultaneously with their I-485 applications for adjustment of status. The effect of the “current” designation for the second preference (A) (known as “F2A”) is to allow the spouses and children of permanent residents to file I-130s and I-485s contemporaneously, rather than having to wait the 18 months that the backlog reflected last month.

So, as of August 1, 2013, people who have already filed I-130 petiti0ns in the F2A category can file applications for adjustment of status or can pursue their immigrant visas at Embassies and Consulates abroad. In addition, the spouses and children of permanent residents who were waiting for their spouse to become a U.S. citizen before filing can file concurrently for an I-130 immigrant petition and I-485 application for adjustment of status.

It is not clear just how long the “current” status will last. What is certain is that it should last through the entire month of August, although it could roll back by September. Applications filed in August, when there were visas, will not be denied upon the rollback, but will rather be held until the visa is available. For many reasons, it is better to wait out that period, if necessary, with a pending application for adjustment of status.

To discuss your options, please contact our office at 202-644-8600 or at consults@benachcollopy.com.