AILA Insights into Visa Bulletin CutOff Dates

The American Immigration Lawyers Association (AILA) recently released a summary of information garnered in discussions with Charles Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State (DOS). The information provides insights that help to explain the cutoff dates in the employment-based (EB) categories in the DOS Visa Bulletin, including the lack of advancement in employment-based, second preference (EB2) category for India.

EB1 and EB5 Will Impact EB2 Category

Applicants generally focus only on their own EB categories. However, for those in the EB2 category from India or China, it is important to understand the connection to employment-based, first preference (EB1) and employment-based, fifth preference (EB5). Excess visa numbers allocated to EB5 can be shifted to EB1. If there are unused immigrant visa numbers in EB1, these fall into the EB2 category and are made available to countries that are oversubscribed. That is, if there are extra visa numbers not needed in EB5 or EB1, they are ultimately given to EB2 India and China. In the recent past, the excess numbers made available to EB2 in this fashion greatly outweighed the visa numbers allocated to India and China under the per country limits.

Employment-Based, First Preference (EB1)

This category is expected to remain current through the upcoming months. India and China have reached the annual per country limit in EB1. However, excess EB1 visa numbers from other countries of chargeability are available to shift over to fill the excess demand for India and China. So, due to the availability of these excess EB1 numbers, no retrogression is expected at this time in the EB1 category for any country.

Employment-Based, Fifth Preference (EB5)

The usage of EB5 numbers is reported as showing a 75 percent increase over last year. The DOS does not believe that it will be necessary to establish a cutoff date for EB5 China, as they previously indicated.

Employment-Based, Second Preference (EB2)

The DOS attributes the stagnation in the EB2 category for India to the phenomenon known as EB3 to EB2 upgrades. This strategy allows the beneficiary of an EB2 case to retain the priority date assigned in an EB3 case. This creates a group of EB2 cases with much older priority dates. An example of the impact and prevalence of the upgrade strategy is reflected in the DOS’s reported usage of 125 EB2 India visa numbers in December 2012 for cases with priority dates of 2003 or earlier. The upgrade strategy is not limited to India.

The DOS reported that there were 1,100 EB3 to EB2 upgrades for the category of all chargeability areas except those listed (worldwide) in the month of December 2012 alone for cases with priority dates in 2011 or earlier. The DOS projects the possibility of reaching the EB2 India limit, even with the cutoff date of September 1, 2004.

The unknown in this equation is the number of unused immigrant visas that will fall from EB5 and EB1. This fall makes additional numbers available to EB2 India and China, but the DOS offered no current predictions in this area. The level of demand for the limited numbers, however, is shown by the DOS report that there are approximately 42,000 pending EB2 India cases with priority dates prior to May 2010.

Employment-Based, Third Preference (EB3)

The DOS expressed confidence in the data it has regarding the volume of pending EB3 India cases. There are 44,000 EB3 India cases with priority dates before August 2007 that have been pre-adjudicated and are awaiting visa issuance.

Conclusion

The data and insights provided by Mr. Oppenheim are always helpful. Although disheartening for many, this information furthers the efforts of foreign nationals to understand the extreme retrogression and complete stagnation of the EB2 India category. It also helps to clarify the ongoing EB3 backlogs and the expectations for all EB categories. Any hope of advancement in EB2 India, it is clear, rests with the rather uncertain availability of extra numbers from EB5 and EB1. MurthyDotCom will continue to update readers on any further information on the visa bulletin, as it becomes available.

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