Anticipate Movement of EB2 for India in May 2011

[This was first announced to visitors to MurthyDotCom on 29.Mar.2011. See EB2 India Expected to Advance in May 2011. Be certain to check our website regularly for important updates.]

The U.S. Department of State (DOS), Visa Control and Reporting Division, announced on March 29, 2011 that the cutoff date for EB2, India, will advance in the May 2011 Visa Bulletin. This is welcome news, as the cutoff date in EB2 India has remained stagnant in recent months. The amount of forward movement is not yet known, at the time of this writing.

Explanation: Unused EB1 Numbers

The laws governing issuance of visa numbers allow for certain shifting between visa categories, so that all immigrant visa numbers are utilized. The visa numbers are allocated each fiscal year and must be used during the particular fiscal year. Thus, as the end of a fiscal year approaches, there is often some shifting of numbers from categories with excess unused numbers to categories with shortages. The EB1 category is experiencing a decrease in demand for visa numbers. The DOS thus estimates that at least 12, 000 visa numbers slated for EB1 will be available to move to EB2 and will primarily benefit nationals of India.

The announcement referenced a dramatic reduction in the use of EB1 numbers. The reason for this is not identified but, to some extent, may be tied to the adjudications changes discussed in our news article and the interim USCIS guidance relying Kazarian v. USCIS. (See article #2 in this edition of the MurthyBulletin.)

Additional Visa Numbers Primarily Benefit Nationals of India

The visa numbers that are shifted between categories have to be used strictly in order of priority dates. India and China are the only two countries of chargeability that are backlogged in the employment-based, second preference category (EB2); India having more cases without available visa numbers. The extra numbers, therefore, must go to India first because it has the greatest deficit and backlogs. While not stated in the announcement, if India’s cutoff date becomes the same as that of China, then the excess immigrant visa numbers will be shared between the two backlogged countries. This will be done in a proportion that keeps the cutoff dates identical for the two countries. This often happens at the end of a fiscal year.

Expect More EB2 Approvals for Early Priority DatesExtra visa numbers in EB2 India would mean that additional individuals with I-485 “green card” cases pending with USCIS will become eligible for approval. Many of these applicants have been waiting since the summer of 2007 or earlier to become permanent residents. The USCIS’s I-485 pending inventory charts provide a helpful view of the volume of such cases. MurthyDotCom and MurthyBulletin readers were updated regarding these charts in our news article, USCIS Update on Pending I-485s (04.Feb.2011). The forward movement of cutoff dates would also open opportunities for some individuals to file their I-485 applications during May 2011.

Be Prepared for EB2 I-485 Filings and Respond to RFEs, Etc

This is definitely good news for many of our readers. The number of days, weeks or months of advancement, however, is not yet known. Those who have pending I-485s filed in EB2 should promptly respond to any requests for evidence (RFEs) or biometrics notices received, so that their cases will be postured for approval if the priority date becomes current. Some who have been contemplating job changes may wish to make a final decision on that matter, and utilize AC21 portability to make a job change while it is still possible. Others who may finally be able to file their I-485s should make sure that all of the necessary documents are in place, particularly any that have to be obtained from abroad, such as birth records. We at the Murthy Law Firm will continue to share useful information with our readers regarding visa bulletin cut-off date movement.

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