November Visa Bulletin: Employment-Based Categories Remain Current for Dates of Filing

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The November Visa Bulletin has been published by the Department of State.  The Bulletin dates for filing remain the same for most employment-based and other categories, with some advancement for final action dates.  Significantly, USCIS confirmed that it will follow the Visa Bulletin’s dates for filing in the employment-based categories. This means that employment-sponsored foreign nationals who were eligible to file in October, many of whom have been waiting years, will continue to be eligible to file their I-485, adjustment of status (“green card”) applications in November.

Employment-Based Priority Date Summary

The priority date advancement in October, which remains steady in November, most significantly impacts Indian and Chinese nationals subject to long backlogs.  Individuals in a category that is “current” as well as individuals who have a priority date before the cut-off date listed under dates for filing on the Visa Bulletin may file an adjustment of status/green card application this month.

EB-1, FIRST PREFERENCE CATEGORY

  • Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) is current in November.
  • India and China:   The cut-off date for filing is September 1, 2020.

EB-2, SECOND PREFERENCE CATEGORY

  • Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current in November.
  • China: The cut-off date for filing is October 1, 2016.
  • India:  The cut-off date for filing is May 15, 2011.

EB-3, THIRD PREFERENCE CATEGORY

  • Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) (including EB-3 Other Workers) is current in November.
  • EB-3 China’s cut-off date for filing is June 1, 2018.   There is forward movement for EB-3 China Other Workers’ and the cut-off date for filing is now May 1, 2009.
  • EB-3 India’s (and EB-3 India Other Workers’) cut-off date for filing is January 1, 2015.

While individuals with a priority date that is current or before the published cut-off date may file an adjustment of status application based on the dates outlined above, an individual’s green card application may not be approved until the priority date is available under the final action dates posted on the Visa Bulletin.  These dates may differ significantly depending on the preference category and country of birth.

BACKGROUND

In October, there was rapid advancement in the employment-based priority dates reflecting the impact of travel bans and consular closures in fiscal year (FY) 2020.  In particular, Presidential Proclamation 10014 (PP 10014), banning admission of certain immigrants, meant that many family-based immigrants were unable to obtain their immigrant visas in FY 2020. By statute, the unused family-based numbers from FY 2020 have been added to the FY 2021 employment-based visa allocation.  In the first month of FY 2021, a record number of immigrant visas are available in most of the employment-based categories.

WHAT SHOULD EMPLOYERS EXPECT?  

Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications this month, and those who were current in October will have additional time to file their cases.  Quick action to initiate cases is critical, as these applications require significant documentation, including documentation required under the recently reinstated Public Charge provisions.  The late publication of the new visa bulletin and the Thanksgiving holidays shorten the timeline to file.

Although the Department of State projected that some advancement in employment-based priority dates will continue through January 2021, filing dates remained steady in November and the large number of cases expected to be filed in October and November will likely impact the final action dates.

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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