As India and China EB-2 Priority Dates Advance, Does a Freeze or Retrogression Look Likely in 2012?

The U.S. Department of State just issued the January 2012 Visa Bulletin, heralding a ten month improvement in priority date cut-offs for Indian and Chinese nationals in the second employment-based visa preference category, more commonly known as the “EB-2” classification.  While this rapid advancement in visa cut-off dates is truly welcome news, eligible EB-2 visa beneficiaries are well advised to file Adjustment of Status applications without delay, as a surge in visa applications could cause a possible retrogression of the cut-off dates within 2012.

As anyone who remembers the July 2007 “visa gate” fiasco knows, the establishment of visa priority date cut-offs is an inexact science.  In fact, it is essentially impossible to accurately predict when a particular priority date will become “current” because priority date cut-offs are rather elastic; that is, they can move forward, retrogress (move backward), or remain the same. The reason for this is that priority date cut-offs are set each month by the State Department based on a variety of factors, not the least of which is the number of immigrant visas that are being requested by U.S. Citizenship and Immigration Services (USCIS) and U.S. consulates as they adjudicate related applications for Adjustment of Status (USCIS Form I-485) or consular processing of immigrant visas, respectively.  As such, one way to think about this rapid advancement in the EB-2 priority date cut-offs for India and China is that the cut-off dates moved forward so significantly because USCIS has not received or processed enough green card applications to significantly diminish the available supply. As a result, while there currently seems to be a large number of available EB-2 immigrant visas, this could quickly change as demand increases.  That is, as more eligible EB-2 applicants from India and China file their I-485 Application for Adjustment of Status and USCIS adjudicates those cases, immigrant visa numbers will be exhausted.  If the rate at which filings and adjudications occur is faster than expected, the State Department will have to keep the priority date cut-offs static, or perhaps even retrogress them.  On this point, it is important to understand that the primary reason that the cut-off dates moved forward so significantly in the January 2012 Visa Bulletin is that the Department of State wanted to spur increased demand from eligible applicants and USCIS to ensure that all of the available visas are used within the fiscal year.

Under current law, the State Department can only issue a combined maximum of 140,000 employment-based immigrant visas in all of the preference categories each fiscal year.  Moreover, there is “per country” preference limit of 7% of the total.  Although a bill to remove the “per country” caps remains stalled in the U.S. Senate, the existing law requires that once the demand for immigrant visas from persons whose priority dates are now “current” meets or exceeds the supply, the State Department will not be able to again advance the priority date cut-offs until it is confident that a supply of visas for the remainder of the fiscal year remains available. This could again result in visa backlogs.

In October 2011, Charles Oppenheim, Chief of the Visa Control and Reporting Division at the Department of State, noted that while forward movement of the India and China EB-2 priority date cut-offs can be expected in the January 2012 and February 2012 Visa Bulletins, he also cautioned that if there is high demand, he may have to hold or even retrogress the cut-off dates toward the summer of 2012.   On this point, Oppenheim clarified that there is typically a 4-6 month gap between the filing of an I-485 adjustment application and the time when a visa number is actually requested and allocated.  As a result, EB-2 India and China I-485 applications filed in early 2012 will likely be issued visa numbers by the spring or summer of 2012.  If demand during the early part of the year significantly exceeds Oppenheim’s expectations, retrogression may be likely.

In practical terms, this means that it is important for individuals who are eligible to file their green card applications under the January 2012 (and subsequent) Visa Bulletins to do so without delay. Newly eligible visa beneficiaries can file Form I-485 Adjustment of Status (AOS) applications with USCIS as early as January 1.  Moving forward, it will be important to closely monitor each monthly Visa Bulletin with the assumption that EB-2 cut-offs will eventually freeze or retrogress later in the year.  On that count, let’s keep our fingers crossed and hope that we continue to see significant further advancement over the next couple of months.

About Vic Goel

Vic Goel is Managing Partner of Goel & Anderson. His practice includes strategic immigration planning to assist domestic and multinational corporations with recruitment and hiring of international professionals, highly skilled technicians, managers, executives, and students. Vic has been selected by his peers for inclusion in The Best Lawyers in America in the field of Immigration Law, and was awarded a Distinguished Peer Review Rating for legal ability and ethical standards from the Martindale-Hubbell Law Directory. He has also been selected for inclusion in The International Who’s Who of Corporate Immigration Lawyers, a publication that identifies the preeminent lawyers in the field through annual peer recommendations. He can be contacted at vic.goel@goellaw.com.
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One Response to As India and China EB-2 Priority Dates Advance, Does a Freeze or Retrogression Look Likely in 2012?

  1. Kandaswamy R. says:

    Thanks for important article. People should not wait to file I-485 also because long queue will form that could delay GC issuance.