November 2011 Visa Bulletin: Good News for EB2 India and China

The U.S. Department of State (DOS) issued the November 2011 Visa Bulletin during the first week of October. To the delight of many, the employment-based, second preference (EB2) category for India and China continues to advance significantly. This change will allow many individuals to file for adjustment of status (Form I-485) to permanent residence. Predictions for upcoming months, as well as an explanation of the November Visa Bulletin, follow for the benefit of MurthyDotCom and MurthyBulletin readers.

Summary of Visa Bulletin

Employment-Based, First Preference (EB1)

This category is current for all countries of chargeability.

Employment-Based, Second Preference (EB2)

This category, as expected, is current for all countries of chargeability, other than India and China which are oversubscribed. However, the cutoff date for both India and China is advancing in excess of three months, to November 1, 2007. Thus, the EB2 cutoff date for India and China will see more than six months of improvement during just the first two months of fiscal year 2012 (FY12).

The November 1, 2007 cutoff date, most remarkably, is the best that EB2 India and China have seen since the summer of 2007. Therefore, many individuals who have been waiting since mid-to-late 2007, finally will be able to file their I-485s as the final step in their permanent resident (“green card”) cases. Others who have chosen to consular process will also see their cases advance and be eligible for issuance of immigrant visas.

Employment-Based, Third Preference (EB3)

Very slight forward movement will be experienced throughout this category in November. The cutoff date for the category of all chargeability areas except those listed, as well as for Mexico and the Philippines, is moving by just over two weeks for the second consecutive month. The new cutoff date is December 22, 2005. India’s cutoff date is moving by only a week, to July 22, 2002. China’s cutoff date advances to August 22, 2004.

Other Workers’ Category

The EB3 other workers’ category is advancing by two months, to a new cutoff date of November 15, 2005, for the category of all chargeability areas except those listed, the Philippines, and Mexico. China’s cutoff date again is unchanged, remaining at April 22, 2003. India’s cutoff date is advancing to June 15, 2002.

Employment-Based, Fourth (EB4) and Fifth (EB5) Preferences

These categories remain current for all countries of chargeability.

Predictions and Analysis: Employment-Based, Second Preference (EB2) India and China

In our NewsBrief on last month’s Visa Bulletin, October 2011 Visa Bulletin: Forward Movement for EB2 India/China, we explain the reason for the uncharacteristically rapid advancement of the EB2 India and China cutoff dates during the first two months of FY12. As we predicted, there is a need to allow for many more I-485 filings, as many of the I-485 cases that were filed in the summer of 2007 finally have been approved. The availability of visa numbers at the end of FY11 allowed for the oldest pending EB2 India and China I-485 cases to become eligible for approval. Therefore, in order to have cases in the queue for approval with enough time to use all the visa numbers for FY12, it is necessary to open filings early in the fiscal year (FY). This is what is occurring.

The Visa Bulletin for November 2011 states that significant future cutoff date movement is anticipated in EB2 India and China. These advancements may not occur each month, however, and may not continue throughout the FY. It is possible that, after this anticipated advancement, there could be retrogression at some point during the FY. This is because the purpose of the advancement is to create demand for visa numbers, by filling the pipeline with I-485 cases that are eligible for approval. Once there are enough cases filed and moving through adjudications, the advancement will stop, or at least, slow down and, depending upon various factors, the dates could retrogress.

Recommendations: Be Prepared

Most importantly, individuals who have priority dates that will become current in November must take steps toward preparing their cases for filing. Others, whose priority dates are not yet current but are close to the new cutoff date, may want to begin gathering all the documents and information needed for their I-485 filings. This will avoid unnecessary delays and will enable their cases to be filed in the first month that the priority date is available.

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