U.S. Citizenship and Immigration Services (USCIS) has announced a monthly schedule for how it will inform immigrants of whether it will apply the State Department’s cutoff dates for filing of adjustment of status applications (“Dates for Filing”).

Within one week of the State Department’s publication of the Visa Bulletin, USCIS will post on its website whether applicants may use the Dates for Filing chart as stated in the Bulletin. Unless otherwise stated on the USCIS website, applicants must follow the Final Action Dates chart instead of the Dates for Filing chart as published in the Visa Bulletin to determine when they may file applications. Going forward, USCIS’s determination of whether it will honor the Dates for Filing chart in the Visa Bulletin will depend on its calculation of whether there are more immigrant visas available for a fiscal year than the known applicants for each visa category.

Under a new format, the State Department publishes two charts in its monthly Visa Bulletin: Final Action Dates (for approval of visa petitions) and Dates for Filing (for filing of adjustment of status petitions). The Dates for Filing chart was added to the Visa Bulletin for October 2015 and would have allowed many thousands of immigrants in backlogged categories to file applications for adjustment of status sooner.

However, the State Department retracted the original Visa Bulletin it had issued on Sept. 9 and issued a new one for October 2015 that dramatically reduced the number of applicants who could benefit from the new system. This prompted strong negative reactions from the public, including statements of opposition from members of Congress, trade associations and advocacy organizations, and a class-action lawsuit filed by affected immigrants. Last week, the court refused to grant a temporary restraining order in the lawsuit to require the government to accept applications filed in reliance on the rescinded Visa Bulletin.

The State Department has declined to reinstate the Sept. 9 Visa Bulletin, and proceeded to issue the November 2015 Visa Bulletin with the same two-chart structure that did not alter the Dates for Filing published in the revised Bulletin for October 2015.

BAL Analysis: The government has not shown any willingness to reinstate the Dates for Filing that were announced on Sept. 9 and has instead chosen to defend its actions in court. Though the class-action lawsuit will continue to proceed, that process is lengthy and companies and applicants should not expect relief any time in the coming months. Companies and applicants should therefore look to the November Visa Bulletin and monitor the USCIS website for announcements regarding filing dates, and consult with their BAL professional on steps the company should take to retain workers and minimize the harm that results from the extended visa backlogs.

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