October 2012 Visa Bulletin: Severe EB2 Retrogression

The release of the U.S. Department of State (DOS) Visa Bulletin for October 2012 has generated shockwaves for those in the employment-based, second preference (EB2) India category. The retrogression to a cutoff date of September 1, 2004 in the EB2 India category is far more extreme than earlier DOS predictions had indicated. Another unusual Visa Bulletin development is that EB2 has retrogressed with cutoff dates for the category of all countries of chargeability. The Murthy Law Firm’s summary and analysis of the October 2012 Visa Bulletin, which follows, is for the benefit of our readers.

Summery of Visa Bulletin

Employment-Based, First Preference (EB1)

This category is current for all countries of chargeability.

Employment-Based, Second Preference (EB2)

This category is retrogressed throughout. India’s new cutoff date during the month of October 2012, the first month of fiscal year 2013 (FY13), is September 1, 2004. The cutoff date for China is July 15, 2007. All of the remaining countries have a cutoff date of January 1, 2012. While the cutoff date of January 1, 2012 is far less extreme than the India and China cutoff dates, historically, all countries other than India and China have been current each month.

Employment-Based, Third Preference (EB3)

The cutoff date in the EB3 category for all chargeability areas except those listed, advances by a few weeks, to October 22, 2006. The same date applies to Mexico. The cutoff date for the Philippines remains unchanged at August 1, 2006. China advances by approximately one and one half months, to a new cutoff date of February 8, 2006. India inches forward yet again by a week to a cutoff date of October 15, 2002.

Other Workers’ Category

The cutoff dates in the EB3 other workers’ category are identical to the cutoff dates for the respective countries in the general EB3 category, with the exception of China. The cutoff date for China is unchanged at June 22, 2003 in this category.

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

The cutoff dates in the categories for EB4 Certain Religious Workers and EB5 Pilot Programs are listed as unavailable. The reason for this unavailability is that both of these categories are slated to expire on September 30, 2012. In order for these categories to continue during FY13, Congress will have to agree to extensions of these programs and benefits. These programs have been extended previously, generally at the last minute, but there is no guarantee that these benefits will be extended again.

DOS Priority Date Movement in October 2012 Varies from Prior Predictions

The EB2 India cutoff date predictions issued by the DOS prior to publication of the October 2012 Visa Bulletin first indicated a mid-2007 date, and, at the end of August, predictions were revised to a 2006 date. Fluctuations in the predictions and cutoff date of September 1, 2004 reflect a level of uncertainty, and an apparent effort by the DOS to regain a better level of control over the use of visa numbers.

EB2 Movement Not Typical for Other Countries

The EB2 worldwide cutoff date is atypical. Prior to the final months of FY12, EB2 worldwide was current in all but one month for a period of twenty years. The DOS provided an explanation at the end of August regarding EB2 worldwide. The DOS indicated at that time that a cutoff date in EB2 worldwide was under consideration at the start of the FY in an effort to slow the visa number usage and to help predict usage for the rest of the FY.

No Future DOS Predictions on Movement of PDs

The October 2012 Visa Bulletin does not include any explanation or predictions for future movement of priority dates (PDs). The unusual developments in the October 2012 Visa Bulletin are continued fallout from the extreme forward movement of cutoff dates in FY12.

No Spillover of Unused EB1 Numbers for EB2

The DOS has indicated that one of the issues with respect to FY12 is that demand for EB1 numbers was unexpectedly high. The DOS had expected that 13,000 visa numbers from EB1 would drop down and become available for use in EB2, but this did not occur. There is uncertainty regarding whether there will be any excess EB1 numbers in FY13 to drop down to EB2.

Conclusion

We at the Murthy Law Firm understand that the extreme retrogression in EB2 India and the establishment of a priority date for all other countries is disheartening for many, many foreign nationals who have been waiting to become U.S. permanent residents. This situation creates a range of complications, including family separation for some. Readers should check MurthyDotCom regularly for the latest updated visa bulletin information.

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