Retrogression for EB-2 Petitions from India

more+
less-
more+
less-

Many foreign nationals from India were disheartened to learn that the priority cut-off date for the EB-2 work visa recently retrogressed by nearly four years, further delaying the approval process.

Foreign nationals seeking a green card may be able to apply under the EB2 category if they are members of a profession that requires an advanced degree. One of the most common ways for a sponsored individual to qualify for the EB2 category is a showing that the employees needs an individual with an advanced degree, such as a master’s or doctorate, to fill a vacant position and the sponsored individual possesses that degree.

Alternatively, a sponsored individual may qualify for the EB2 category if (1) he or she has a bachelor’s degree (or its foreign equivalent) AND five years of post-degree experience; or (2) he or she has exceptional ability in the sciences, arts, or business, and will substantially benefit the national economy, cultural or educational interests, or welfare of the United States.

Each month, the Department of States sets priority cut-off dates from various visa categories, and last November, the EB-2 category retrogressed by nearly four years – from June 15, 2008 to November 15, 2004 – for petitions from India. The latest Visa Bulletin from the Department of State indicates that the priority cut-off date for EB-2 petitions from India remains unchanged at November 15, 2004. As a result, green cards cannot be obtained for EB-2 Indian nationals with a priority date after November 2004.

The likely cause of the retrogression is an unprecedented demand for EB-2 visas from India. According to some estimates, from November 10, 2013 to November 20, 2013, the Department of State received approximately 150 new EB-2 visa petitions per day from India, many of which were upgrades from the EB-3 category.

In some cases, a foreign national may be eligible for more than one employment-based visa classification, such as an EB-2 and EB-3 category. In these cases, the applicant can file an I-140 in concurrent classification if he or she chooses. Alternatively, if the applicant already filed an I-140, he or she may wish to file a subsequent I-140 to change their visa classification from EB-2 to EB-3 if the cut-off date of one category has surpassed the cut-off date for the other.

Currently, the cut-off date for EB-3 petitions from Indian remains at September 15, 2003, but should the cut-off date for Indian EB-2 petitions further retrogress and the EB-3 cut-off date progress so that it surpasses the EB-2 cut-off date, Indian foreign nationals may wish to file a subsequent I-140 in order to seek the more recent priority cut-off date. Filing a subsequent I-140 for a new category is permitted by the U.S. Citizenship and Immigration Services (USCIS) provided that the applicant qualifies for both preference categories.

Topics:  EB-2, Foreign Nationals, India, Visas

Published In: Immigration Updates, Labor & Employment Updates

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.

© Ronald Shapiro | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »