Additional Movement for EB-2 India Released in Department of State's August 2014 Visa Bulletin

by Faegre Baker Daniels
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The August 2014 Visa Bulletin was recently released by the U.S. Department of State (DOS). As outlined in our June 10, 2014, legal update on this issue, the EB-2 category for foreign nationals from India pursuing the permanent residence process moved forward significantly on July 1, 2014, with the issuance of the July 2014 Visa Bulletin. The cutoff date as of July 1 for EB-2 India is September 1, 2008. With the issuance of the August 2014 Visa Bulletin, EB-2 India has again moved forward. The new cutoff date for EB-2 India on August 1 will be January 22, 2009.

August 2014 Visa Bulletin — Update on Priority (Cutoff) Date Movement

The August 2014 Visa Bulletin was recently released by the DOS. The DOS publishes this monthly report which outlines the visa availability for individuals seeking permanent resident status in the U.S. The Visa Bulletin is used as a guide for the issuance of immigrant visas at U.S. consulates overseas and to determine whether an Application to Register Permanent Residence or Adjust Status ("green card" application) may be accepted or adjudicated by the U.S. Citizenship and Immigration Services (USCIS).

For employment-based (EB) permanent residence cases, the dates published in the Visa Bulletin refer to the priority or "cutoff" date assigned to foreign nationals as they begin the permanent residence process. For EB immigrant petitions, the priority date is determined by the earlier of either the date an Immigrant Visa Petition (Form I-140) was filed with USCIS or the date a Labor Certification Application (PERM) was filed with the U.S. Department of Labor. Once this date becomes current, the beneficiary is then eligible to file a green card application with USCIS or an immigrant visa petition with a consulate or embassy abroad.

As initially reported by Charles Oppenheim of the State Department's Visa Office, the EB-2 category for foreign nationals from India pursuing the permanent residence process has started to see significant movement — first with the July 2014 Visa Bulletin and now with the issuance of the August 2014 Visa Bulletin. The new cutoff date as of August 1 for EB-2 India is January 22, 2009. Although there was some movement across other employment-based categories in the August 2014 Visa Bulletin (including EB-3 China, from October 1, 2006 to November 1, 2008), EB-2 India is quite significant. For example, EB-3 India moved from November 1, 2003, to November 8, 2003, and EB-2 China moved from July 1, 2009, to October 8, 2009.

Report From Visa Office on Visa Availability in Coming Months

The movement in both the July 2014 and August 2014 Visa Bulletins is confirmation of recent statements from Charlie Oppenheim of the Department of State's Visa Office (VO) with respect to visa demand and more possible movement of the Visa Bulletin. With respect to additional movement for EB-2 India and EB-3 China, the August 2014 Visa Bulletin provides this important information:

  • The China-mainland born Employment Third and Third Other Workers cutoff dates have advanced for the month of August and could do so again for September. There are two reasons for this advance after the retrogression of the cutoff date earlier this summer: 1) The heavy demand by applicants with priority dates significantly (years) earlier than the previous cutoff date has declined during the past two months, and 2) declining number use in the Family preferences during May and June, combined with updated estimates of such number use through the end of the fiscal year, has resulted in availability of several hundred numbers for use in the China-mainland born Employment Third preference.
  • During the past two months, the India Employment Second preference cutoff date has advanced very rapidly based on the projected availability of "otherwise unused" numbers under the worldwide preference limit. It must not be assumed that this cutoff date will continue to advance at the same pace during the coming months. A cutoff date does not mean that everyone with a priority date before such cutoff date has already been processed to conclusion. It remains to be seen how heavy the demand for visa numbers by applicants will be in the coming months, and what the priority dates of such applicants may be. Heavy demand by applicants with priority dates significantly earlier than the established cutoff date is expected to materialize within the next several months, at which time the cutoff date is likely to retrogress significantly.

More information is available in the August 2014 Visa Bulletin.

Earlier reports from the Visa Office indicated that EB-2 India could move until a date in Summer 2009 during the summer months of 2014. Although this could still happen when the September 2014 Visa Bulletin is issued in mid-August, the information outlined above indicates that EB-2 India will retrogress significantly in the next several months. Therefore, since it is unclear how long this window of opportunity will be open before EB-2 India may retrogress (go backward), it is best to act as quickly as possible with this movement for EB-2 India.

Conclusion

As outlined in our June 10, 2014, legal update, USCIS has and continues to issue Requests for Evidence (RFEs) on pending I-485 adjustment of status application that have or will soon have current priority dates under the Visa Bulletin. The RFEs that have been issued by USCIS have been to update medical exams, as well as to submit updated confirmation of employment letters. With the additional movement under the August 2014 Visa Bulletin, along with the warning that EB-2 India could retrogress (go backward) in the next several months, I-485 applicants who have received RFEs should submit responses to USCIS as quickly as possible so that applications with current priority dates as of July 1 or August 1 can be approved by USCIS as quickly as possible before any retrogression in the EB-2 India category. I-485 applicants with current priority dates in July and/or August and who have already submitted RFE responses should pay close attention to their mail as USCIS will send the permanent resident cards directly to these applicants at the home address that is on file with USCIS once such applications are processed and finally approved.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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