The U.S. Department of State’s (DOS) Visa Bulletin sets out per country priority date cut-offs that regulate when an individual can begin the final phase of the lawful permanent residence (“green card”) process, either through adjustment of status or a consular immigrant visa application. Those with priority dates that are earlier than the date listed for that visa category and country can proceed with their applications. Since the EB-2 (Employment-Based, second preference) visa category is heavily used by citizens of India and China, it can take a substantial amount of time for the dates on the Visa Bulletin for those categories to move forward.

An updated forecast of employment-based visa date movements for FY 2014 and beyond is summarized below:

• EB-2 (Employment-Based, Second Preference)
  • By September 2014, the cut-off date for foreign nationals in the EB-2 category from India, which is currently at November 15, 2004, could advance, by nearly five years, to an early summer 2009 date.
  • It is expected that EB-2 China, currently at May 22, 2009, could advance, by five weeks per month, for the remainder of the fiscal year.
  • The EB-2 Worldwide category is expected to remain current for the remainder of FY 2014.

• EB-3 (Employment-Based, Third Preference)
  • It is anticipated that there will be minimal forward movement in the EB-3 category. Specifically:
    • EB-3 China, which is currently at October 1, 2006, is expected to remain unchanged (or potentially retrogress) for the remainder of FY 2014 and to advance slowly during FY 2015.
    • EB-3 India, now at October 15, 2003, will move forward at a slow pace of one week per month through the end of FY 2014.
    • DOS also anticipates that cut-off dates in the EB-3 category for all other countries will remain fixed for the remainder of the fiscal year.

The projected rapid advancement of the India EB-2 cut-off date is due to the availability of unused visa numbers in the EB-1 (Employment Based, first preference) and EB-2 worldwide categories that will “trickle down” to the EB-2 India quota.

Impact on Employers and Foreign Nationals

As a result of the substantial forward movement predicted in the EB-2 India category, many additional individuals could become eligible to proceed to the final stage of the lengthy green card process. Employers and foreign nationals must keep in mind that, if there is a dramatic increase in demand in response to the advancement, EB-2 cut-off date retrogression is a distinct possibility in FY 2015. Consequently, the U.S. Citizenship and Immigration Services (USCIS) may be left with a very limited time period to adjudicate pending cases, and eligible EB-2 Indian nationals who do not have pending adjustment applications may only have a brief window to file an application if their priority dates become current during the coming months. Of course, the exact cut-off date will only be revealed when the DOS releases the Visa Bulletin announcing the advancement. With the projected advancement in the cut-off date, it is unclear how many visa numbers will be available. Moreover, pending adjustment applications will take priority over new applications.

Adjustment applicants with pending cases may need to provide supplemental documentation (including updated employment verification letters from the petitioning employer, proof of continuous employment authorization in the United States from the date the adjustment application was filed, and updated biometrics and medical certificates) to USCIS when their priority dates become current. This will assist the agency in finalizing and adjudicating these cases.

Employers should regularly review each foreign national employee’s current nonimmigrant status and work authorization for long-term planning. In the event that visa numbers become unavailable, employers should anticipate much longer processing timeframes for employment-based green card cases.