Immigrant visas have become unavailable for Indian and Chinese
nationals in the EB-2 category; DOS indicates that it may be
necessary to establish a cutoff date for the EB-1 category.
The U.S. Department of State (DOS) has released its June 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 June 2012 Visa Bulletin Say?
EB-1: All EB-1 categories remain current.
EB-2: Priority dates remain current for foreign nationals
in the EB-2 category from all countries except China and India;
immigrant visas are UNAVAILABLE for Indian and Chinese nationals in
the EB-2 category.
As had been widely expected, the June Visa Bulletin indicates
visa unavailability in the EB-2 category for individuals chargeable
to India and China. The cutoff dates that were indicated in the May
Visa Bulletin have been replaced with a "U" notation.
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 no more immigrant visas for EB-2 Indian and Chinese
nationals will 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, after June 1, 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 would not be able to file an I-485 application or have it
approved. I-485 applications that are pending for EB-2 Indian and
Chinese nationals will continue to be processed and Advance Paroles
and Employment Authorization Documents will be issued as
appropriate, but the I-485 applications themselves may not be
approved until October 1, 2012, at the earliest.
Note: AOS applications for EB-2 Indian and Chinese nationals
with current priority dates may be filed until May 31.
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: August 8, 2005 (forward movement of 129
days) India: September 15, 2002 (forward movement of 7
days) Mexico: June 8, 2006 (forward movement of 38
days) Philippines: May 22, 2006 (forward movement of 21
days) Rest of the World: June 8, 2006 (forward movement
of 38 days)
DOS Predictions for the EB-1 Category and the Rest of
the World EB-2 Category
The DOS has indicated that, in view of higher usage in the EB-1
category, it may be necessary to establish a cutoff date for the
category, regardless of country of chargeability. The DOS has also
indicated that a cutoff date may be established for the rest of the
world EB-2 category (which is current at the moment), and that this
may occur at any time in the next few months. Given the publication
schedule of the Visa Bulletin, the establishment of such cutoff
dates should be publicized at least two weeks before they become
effective.
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 June 2012 Visa Bulletin in its entirety, please visit the DOS website.
Copyright 2012. Morgan, Lewis & Bockius LLP. All Rights
Reserved.
This article is provided as a general informational service
and it should not be construed as imparting legal advice on any
specific matter.
Specific Questions relating to this article should be addressed directly to the author.
On March 8, United States Citizenship and Immigration Services (USCIS) issued a revised Form I-9, Employment Eligibility Verification, bearing an edition date of March 8, 2013, for immediate use by employers.
A bipartisan group of eight U.S. senators has introduced the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, an 844-page bill that aims to bolster border security and seeks to provide some of the nation's 11 million undocumented people with a path to citizenship.
EB-2 category for all chargeable areas other than China and India remains current, with some considerable forward movement but continued backlog in the EB-3 category.
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