Visa Bulletin Predictions: Significant EB2 Movement

The subject of the U.S. Department of State (DOS) Visa Bulletin cutoff date movement is extremely important to many MurthyDotCom and MurthyBulletin readers. We provide predictions only when they are based upon reliable information. What follows is such reliable information, as it was shared by Charles Oppenheim, Chief, Immigrant Visa Control and Reporting Division, DOS. As advised in our October 27, 2011 NewsFlash, EB2 Cutoff of Mar 1, 2008 Expected in December 2011! these predictions include significant movement in the employment-based, second preference (EB2) category for India and China in the upcoming months.

EB2 India and China: December Advancement

The most striking piece of information shared by Mr. Oppenheim during a recent American Immigration Lawyers Association meeting involves upcoming advancement of the cutoff dates in EB2 for India and China. The expectation is that the cutoff date will advance to at least March 1, 2008 in the December 2011 Visa Bulletin. This date will apply to both India and China. All other countries of chargeability will remain “current” in EB2 in December, and are expected to remain current throughout fiscal year 2012 (FY12).

There is a possibility that the EB2 cutoff date in December could be even more favorable than March 1, 2008. Since cutoff dates are based on estimates of demand, the DOS will use data regarding early November 2011 adjustment-of-status filings (Form I-485), prior to establishing the December cutoff date. The cutoff date movement in the November 2011 Visa Bulletin permits a large number of individuals to file for adjustment of status as of November 1st. The DOS monitors the filings to determine whether anticipated demand matches the actual demand for visa numbers.

EB2 India and China: More Movement Likely in Jan and Feb

In addition to the predictions for December 2011, the DOS also anticipates similar levels of advancement during January and February 2012. No specific cutoff dates were given as predictions for these months. The reason for this advancement, as explained in previous articles, is that the prior movement of EB2 cutoff dates has allowed for the approval of the vast majority of pending EB2 I-485 cases. Thus, since I-485 cases take approximately four to six months for U.S. Citizenship and Immigration Services (USCIS) processing, the DOS has to move the cutoff dates forward to allow for enough I-485 filings to fill the (largely empty) pipeline of cases. This has to be done far enough in advance of the end of FY12 (September 30) for cases to be approved before the end of the fiscal year. Otherwise, if there are not enough cases ready for approval, the visa numbers could go unused.

Since the advancement of dates is based upon anticipated demand, once enough demand has materialized, the advancement will not continue at the same pace, and it may be necessary to retrogress the cutoff dates. It appears however that, for at least the next few months, the news in EB2 will be good.

EB3: No Good News

The predictions for EB3 are far worse than for EB2. The EB3 categories for all chargeability areas except those listed, Mexico, and the Philippines are expected to advance by up to one month in each visa bulletin. China’s cutoff date is expected to advance by approximately one-to-three weeks in each monthly visa bulletin. No predictions were given for the heavily backlogged EB3, India, category. The October Visa Bulletin stated that India’s cutoff date is expected to advance by up to two weeks in each visa bulletin.

The DOS reported that there are approximately 54,000 EB3, India, cases pending “on the books.” This includes only those I-485 cases that were filed through the 2007 summer. The estimates of additional cases awaiting I-485 filing are around 130,000, if only the primary is counted. This figure grows to 225,000 if spouses / minor children are considered.

One of the key reasons for the difference between EB2 and EB3 is that EB3 does not receive any “excess” visa numbers from other categories. The EB3 demand for “all chargeability areas except those listed” exceeds the supply. Thus, unlike EB2, there are no excess visa numbers to move from this category to India and China. Additionally, while EB2 receives excess numbers from EB1, EB4, and EB5, these numbers are all utilized by EB2 India and China, and there is nothing remaining to trickle down to EB3.

Upgrades Having Impact

The DOS reported that there are a large number of what are generally referred to as EB3-to-EB2 “upgrade” cases. This strategy, outlined in our NewsBrief, Moving to the Faster Lane: Changing EB3 to EB2 (19.Feb.2010) is apparently being used by, not only those chargeable to India and China in EB3, but also those in the category of all chargeability areas except those listed. The influx in these EB2 all-chargeability-areas-except-those-listed upgrades could mean a higher demand for EB2 numbers in this category. While this is not enough to cause a cutoff date to be established for the category of all chargeability areas except those listed, it could mean that there will be fewer excess numbers available to roll over to EB2 India and China.

EB1 Denials and EB5 Demand

Other factors that have an impact on EB2 cutoff date movement include usage in EB1 and EB5. In FY11, the demand in EB1 decreased dramatically. This was due to a change in EB1 Extraordinary Ability adjudications standards. This caused a high rate of denials in the EB1 category, along with a good bit of ongoing controversy. This topic was reported in our NewsBrief, EB1 Kazarian Analysis for EAs and OPRs (07.Apr.2011). Conversely, the EB5 investor category has become more popular in the past few years. If this trend continues, it would decrease the excess EB5 numbers available to shift to EB2. The increase in demand is likely given the USCIS focus on efforts toward encouraging entrepreneurship and streamlining procedures in the EB5 process.

Conclusion

The operation of the visa bulletin and control of the use of visa numbers is a complex matter, with many interconnected factors. We at the Murthy Law Firm sincerely appreciate the willingness of Mr. Oppenheim to provide transparency in these matters. The predictions of movement in visa bulletin cutoff dates allow foreign nationals to gather needed documentation and otherwise make arrangements in advance of eligibility for their adjustment-of-status filings. This information helps in planning travel, job changes, and marriages. We will continue to provide MurthyDotCom and MurthyBulletin readers with updated information on the DOS Visa Bulletin and related matters.

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