Cutoff date imposed for Rest of World EB-2 category; immigrant visas remain unavailable for Indian and Chinese nationals in the EB-2 category.
The U.S. Department of State (DOS) has released its July 2012 Visa Bulletin. The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident, or to obtain approval of an immigrant visa application at an American embassy or consulate abroad, provided that their priority dates are prior to the cutoff dates specified by the DOS.
What Does the July 2012 Visa Bulletin Say?
EB-1: All EB-1 categories remain current.
EB-2: A cutoff date of January 1, 2009, has been imposed for foreign nationals in the EB-2 category from all countries except China and India; immigrant visas remain UNAVAILABLE for Indian and Chinese nationals in the EB-2 category.
EB-3: There is continued backlog in the EB-3 category.
The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:
China: September 22, 2005 (forward movement of 45 days)
India: September 22, 2002 (forward movement of seven days)
Mexico: July 22, 2006 (forward movement of 44 days)
Philippines: June 8, 2006 (forward movement of 17 days)
Rest of the World: July 22, 2006 (forward movement of 44 days)
Developments Affecting the EB-2 Employment-Based Category
Mexico, the Philippines, and the Rest of the World
For the first time in recent memory, the DOS has imposed a cutoff date for persons who qualify for the EB-2 category and are chargeable to a country other than China or India (Mexico, the Philippines, and the Rest of the World). The imposition of a cutoff date of January 1, 2009, means that, beginning on July 1, 2012, a person chargeable to Mexico, the Philippines, or the Rest of the World with a priority date of January 1, 2009, or later may not file an AOS or an immigrant visa application until his or her priority date once again becomes current.
Since the July Visa Bulletin will not become effective until July 1, 2012, there is a two-week window of opportunity for persons in the EB-2 category who are chargeable to Mexico, the Philippines, or the Rest of the World to file AOS or immigrant visa applications without regard to their priority dates. In this respect, it is important to remember that U.S. Citizenship and Immigration Services currently allows AOS applications to be filed concurrently with I-140 immigrant petitions; it is thus not necessary to wait until an immigrant petition has been approved before filing an AOS application. Since June 30 falls on a Saturday this year, the last day on which an AOS application may be filed and not be subject to the July cutoff date is Friday, June 29. Form I-485 applications that are pending for EB-2 Rest of the World nationals will continue to be processed and Advance Parole and employment authorization documents will be issued as appropriate, but the I-485 applications themselves may not be approved until the relevant priority date is once again current.
It is not clear at the moment whether there will be continued retrogression in the EB-2 Mexico, Philippines, or Rest of the World categories for the remainder of the fiscal year. Given the high volume of AOS application filings that is expected during the last two weeks of June, it is possible that the August Visa Bulletin will impose cutoff dates earlier than January 1, 2009, and that the EB-2 Mexico, Philippines, or Rest of the World categories may not become current again until October 1, 2012, when the 2013 fiscal year begins.
India and China
The July Visa Bulletin indicates continuing visa unavailability in the EB-2 category for individuals chargeable to India and China. This means that the annual quota of immigrant visas for EB-2 Indian and Chinese nationals has been exhausted for the 2012 fiscal year, and that immigrant visas for EB-2 Indian and Chinese nationals will not be available until the 2013 fiscal year begins on October 1, 2012. When the October Visa Bulletin is published in mid-September, it is expected that the "U" notation will be removed from the EB-2 category for Indian and Chinese nationals and that cutoff dates will once again appear in this category. The DOS expects that the EB-2 India and China cutoff dates will not return to May 1, 2010 (the cutoff date indicated in the April Visa Bulletin), until the spring of 2013, however.
The practical effect of this immigrant visa unavailability is that no I-485 AOS applications for EB-2 Indian or Chinese nationals may be filed or approved until at least October of this year, regardless of the applicant's priority date. Thus, even an EB-2 Indian or Chinese national with a 2006 priority date will not be able to file an I-485 application or have it approved.
How This Affects You
Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward, or remain static and unchanged. Employers and employees should take the immigrant visa backlogs into account in their long-term planning, and take measures to mitigate their effects. To see the July 2012 Visa Bulletin in its entirety, please visit the DOS website.
For more information, or if you have any questions regarding the issues discussed in this Immigration Alert, please contact any of the following attorneys:
Lisa Stephanian Burton