Update: Employment-Based Immigrant Visa Numbers and Priority Date Cutoffs

Department of State’s Visa Office comments on demand in the employment-based immigrant visa categories, indicating an early retrogression of the cutoff date for EB-2 India.

Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State (DOS), recently provided updates and projections regarding demand in the employment-based immigrant visa categories during a conversation with members of the American Immigration Lawyers Association.

According to a report on the conversation, from November 20 through November 30, the DOS stopped allocating visa numbers to adjustment of status (AOS) applicants chargeable to India in the Employment-Based Second Preference (EB-2) category. Consequently, as of November 20, the U.S. Citizenship and Immigration Services (USCIS) stopped approving AOS applications for persons born in India in the EB-2 category with a priority date on or after November 15, 2004—the cutoff date that was to have taken effect on December 1 per the DOS’s December 2013 Visa Bulletin. It is expected that EB-2 India AOS applications filed between November 20 and November 30 with a priority date on or after November 15, 2004 will still be accepted by the USCIS. However, these applications may not be approved by the USCIS until the cutoff date moves forward again to November 15, 2004 or later.

The DOS’s decision to enforce the EB-2 India cutoff date for December during the latter part of November came as a result of the recent unprecedented demand for EB-2 visa numbers from applicants chargeable to India. The Visa Office reported that, from November 10 through November 20, it received requests for approximately 150 visa numbers per day from applicants chargeable to India in the EB-2 category. A majority of these requests were from applicants with an earlier priority date in the Employment-Based Third Preference (EB-3) category who now qualify for EB-2.

It is possible in August or September 2014—the last two months of the 2014 fiscal year—that the cutoff date for applicants in the EB-2 category chargeable to India will advance again to around December 2008.

During August and September 2013—the last two months of the 2013 fiscal year—nearly 15,000 EB-2 visa numbers were allocated to pending EB-2 India applications for cases that were preadjudicated by the USCIS.

It is also possible that the EB-2 India cutoff date may further retrogress or that EB-2 India visa numbers will become completely unavailable for the remainder of the fiscal year. Either action may be announced and become immediately effective without forewarning.

Several factors will affect the forward movement of EB-2 India cutoff dates and the availability of extra visa numbers for this and other categories between now and the end of the 2014 fiscal year. These factors include the following:

  • Unused visa numbers in the EB-1 category that would “drop down” to EB-2
  • The number of “upgrades” from the EB-3 category to the EB-2 category from applicants chargeable to other countries
  • The number of EB-2 India visa numbers used for applicants with priority dates prior to November 15, 2004
  • The fact that the total worldwide quota is approximately 8,000 visa numbers lower than the previous year

Finally, the cutoff date for the EB-3 Worldwide category moved forward by a year on December 1 as a result of a low number of EB-3 Worldwide applications currently pending with the USCIS. As demand builds over the remainder of the fiscal year, more conclusions may be drawn from the number of pending cases, and the EB-3 Worldwide category may retrogress.

How This Affects You

The DOS issues a Visa Bulletin each month, setting out per country priority date cutoffs that regulate the flow of AOS and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident or to obtain approval of an immigrant visa at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS. Priority date cutoffs are assessed on a monthly basis based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects.

Topics:  Adjustment of Status, Compliance, Department of State, EB-2, Immigrants, USCIS, 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.

© Morgan Lewis | 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 »