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United States Labor Immigration Law News and Analysis

December 2012 Visa Bulletin – EB-2 India Remains Unchanged at September 2004; EB-5 China Cutoff Date Possible

The U.S. State Department has just released the December 2012 Visa Bulletin which is the third Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of movement in EB-2 India and the possibility of a cutoff date for EB-5 China being introduced in a few months.   Many have been looking forward to this Visa Bulletin in order to gauge the anticipated rate of the forward movement in EB-2 India over the next months; unfortunately, it seems that EB-2 India may face a very slow (if any) forward movement over the next months.

Summary of the December 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the December 2012 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all now current.    EB-2 India remains unchanged, again, at (the severely retrogressed) September 1, 2004.   EB-2 China moves forward by seven (7) weeks to October 22, 2007.
  • EB-3 ROW and EB-3 Mexico move forward by one (1) month to November 22, 2006.  EB-3 Philippines moves forward by only one (1) week to August 15, 2006, EB-3 China  moves forward by ten (10) weeks to July 1, 2006, while EB-3 India  moves forward by only one (1) week to November 1, 2002.
  • The “other worker” category moves forward by one (1) month for ROW and Mexico to December 22, 2006.  It moves forward by only one (1) week for Philippines to August 15, 2006 and remains unchanged for China at July 1, 2003 for China.  It moves forward by one (1) week for India to November 1, 2002.

Summary of the December 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the December 2012 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward.  FB-1 ROW, China and India all move forward by one (1) month to December 1, 2005.   FB-1 Mexico moves forward by only one (1) week to July 1, 1993 and FB-1 Philippines moves forward by three (3) months to October 8, 1997.
  • FB-2A moves forward by five (5) weeks to August 22, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by five (5) weeks to August 1, 2010.
  • FB-2B ROW, China and India all move forward by five (5) weeks to November 15, 2004.  FB-2B Mexico moves forward by two (2) weeks to November 1, 1992 while FB-2B Philippines moves forward by five (5) weeks to March 22, 2002.

No Progress in EB-2 India – Suggests Very Slow Forward Movement in the Future?

Many in the EB-2 India community have been eagerly anticipating to see what the December 2012 Visa Bulletin would look like in an effort to “predict” how quickly the cutoff dates in EB-2 India would move in the future.   Unfortunately, the December 2012 Visa Bulletin does not bring good news.   The lack of any movement in EB-2 India this month is a strong indication that there is simply too high of a demand in the EB-2 India category and that the Department of State would move the cutoff dates forward very slowly in order to allow USCIS to approve the (high) number of EB-2 cases filed and pending.    This is the Department of State’s way to “control” the demand of visas in this category (number of new I-485 filings) and to allow USCIS to work through the number of filed and pending I-485 applications in this category (many of whom are by now eligible for AC21 porting, however).

The movements (or the lack thereof) reflected in the December 2012 Visa Bulletin confirm the predictions and the comments made by Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State.   The lack of movement in EB-2 India confirms Mr. Oppenheim’s comments that EB-2 India will move very slowly over the next months.  Based on the significant retrogression two months ago and the lack of any movement this month, combined with Mr. Oppenheim’s expectations, we expect that there will be very slow and gradual forward movement in this category over the next months.

Anticipated Cutoff Date Movement and Predictions

The December 2012 Visa Bulletin provides an estimate of the movement in a number of categories for the next months (the estimates below are per month).

Employment-based Categories

  • EB-1 – expected to remain current;
  • EB-2 ROW – expected to remain current;
  • EB-2 China – five to eight weeks;
  • EB-2 India – no movement;
  • EB-3 ROW – three to five weeks;
  • EB-3 China – up to two months;
  • EB-3 India – up to two weeks;
  • EB-3 Mexico – three to five weeks; and
  • EB-3 Philippines – one to three weeks.

Family-based Categories

  • FB-1 – three to four weeks;
  • FB-2A – four to six weeks;
  • FB-2B – three to five weeks;
  • FB-3 – one or two weeks; and
  • FB-4 – one or two weeks.

EB-5 China Cutoff Date Possible

The December 2012 Visa Bulletin also alerts to a possible cutoff date being introduced for EB-5 China.   This was also confirmed during our recent meeting with Mr. Charles Oppenheim.   Such cutoff date may have to be introduced during the second half of the fiscal year.   While this prediction can change due to demand, it seems likely that the current strong demand for EB-5 China immigrant visas will force the Department of State to “slow down” the process by introducing a cutoff date in this category.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the December 2012 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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This article is presented by the Capitol Immigration Law Group PLLC, an immigration law firm serving individual and corporate clients in the Washington, D.C. area and nationwide. We specialize in U.S. labor immigration law and we have successfully represented individuals from more than 30 countries and Fortune 100 companies. The article should not be used as a substitute for competent legal advice from a licensed attorney. For more information, please contact us.