Labor Immigration Law

United States Labor Immigration Law News and Analysis

News Alert Articles

May 2014 Visa Bulletin – EB-2 India and EB-3 ROW/China Remain Unchanged; FB-2A Remains Unchanged

The U.S. State Department has just released the May 2014 Visa Bulletin which is the eighth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is, well, the lack of movement in many of the major categories:  no movement in EB-2 India, no movement in EB-3 ROW/China and no movement in FB-2A.

Summary of the May 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the May 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged (again!) at November 15, 2004 and is expected to remain at this level for some more time (but with possible forward movement later in the fiscal year).  EB-2 China moves forward by five (5) weeks to April 15, 2009.
  • EB-3 ROW, China and Mexico remain unchanged at October 1, 2012.  EB-3 Philippines moves forward by three and a half (3.5) months to November 1, 2007, while EB-3 India  moves forward by only two (2) weeks to October 1, 2003.
  • The “other worker” categories for ROW, China and Mexico remain unchanged at October 1, 2012.   Philippines moves forward by three and a half (3.5) months to November 1, 2007, while India  moves forward by only two (2) weeks to October 1, 2003

Summary of the May 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the May 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by two (2) weeks to March 8, 2007.   FB-1 Mexico moves forward by two (2) weeks to November 15, 1993 and FB-1 Philippines moves forward by three (3) months to February 1, 2002.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It remains unchanged for Mexico at April 15, 2012.

EB-2 India and EB-3 ROW/China Remain Unchanged

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.   The reason for this lack of movement is the significant demand and pending cases at USCIS.   Last fall we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with the subsequent several Visa Bulletins, confirm our predictions.

The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until this summer).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW/China remain unchanged this month after several nice forward movements over the past few months.  This is an indication that USCIS is seeing an increased (and perhaps sufficient) number of filings (I-485/NVC) in this category so that they have enough cases to distribute the annual number of green cards.    This slowdown in EB-3 ROW/China is likely to suggest that there would not be much significant forward movement, and perhaps that there may be a possible retrogression in these categories.

Perhaps a tiny glimmer of light in this, otherwise gloomy Visa Bulletin, is the presence of (a small) forward movement in EB-3 India.

EB-3 China Continues to be Ahead of EB-2 China, but EB-3 is Slowing Down

Over the past several months our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (October 1, 2012) is more advanced than the date for EB-2 China (April 15, 2009).

What we saw in this month’s Visa Bulletin should give some pause to those who believe that they may be able to get a green card faster under EB-3 China than under EB-2 China.    In some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We reiterate our caution to EB China applicants that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, and especially given the slowdown in EB-3 China, we believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the May 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 May 2014 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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Alert: FY2015 H-1B Cap Reached on April 7th

The U.S. Citizenship and Immigration Service (USCIS) announced earlier this afternoon that, as of today, April 7th, they have received a sufficient number of H-1B petitions to meet the annual H-1B cap for the 2015 fiscal year (FY2015).    According to USCIS, they have received more than 20,000 H-1B petitions filed for beneficiaries with U.S. master’s degree and more than the 65,000 general H-1B cap petitions.   As a result, any cap-subject H-1B petitions received by USCIS after April 7, 2014 will be rejected.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2015 cap-subject petitions received between April 1 and April 7, 2014.  The agency will conduct the selection process for advanced degree exemption petitions first.  All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.   Also, the total number of petitions received is not yet known due to the large volume of applications.

Petitions Not Selected under the Lottery Will Be Returned With Filing Fees

Petitions accepted for filing but not selected under the lottery will be returned to the petitioners together with the filing fees (unless there were duplicate filings by the same employer for the same beneficiary, in which case no fees will be returned).

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 28 and this is when the 15-day premium processing clock will begin.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers are cap-exempt.

Conclusion

The FY2015 H-1B cap was reached, as anticipated during the first week it was open.   The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue providing updates on the FY2015 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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Very Short and Busy H-1B Cap Filing Season Expected: April 1st to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B Cap Filings

As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a busy and very short H-1B filing season.     According to our sources (which includes clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas.  This means that there is almost a guarantee that there will be a random lottery to allocate the  available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap)  among all filings received in the first five business days of April.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most,  in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 7th.

What is the Ultimate Last Day to Start H-1B and Make It Under the Cap?

We are often asked when is the absolute last day when an H-1B case can be started and filed under the H-1B cap.    The answer is that it varies, depending on many circumstances.    If the employer can plan ahead and file an LCA early (or now), then a new (or confirmed) candidate’s H-1B petition can be started as late as April 1st and still be filed before April 7th.    The LCA is the step of the process which takes the longest to prepare and certify – often 7 business days.  New employers may also need to do a Federal Tax ID (FEIN) verification process (2-3 days) before an LCA is filed.   As a result, while it may be possible to start a new H-1B case as late as March 24, 2014,  there are many possible risk factors which would cause a late H-1B case to be delayed and miss the H-1B cap.

Our strong recommendation to employers is to consider filing all LCAs (even for planned but unconfirmed positions) over the next few days to keep the best possible options for a timely H-1B cap case filing.    Our office is happy to guide you on the timing process to give you the highest possible chance of making the cap.

H-1B Applications Filed Over the First Five Business Days in April Will Be Subject to Random Lottery

Assuming the H-1B cap is reached by April 7th, as expected, all H-1B filings which are received over the first five business days in April will be subject to  a random lottery to determine which of these H-1B applications would be counted and included under the cap.   This means that, as of now, we expect all H-1B cap cases filed over the first business five days in April to be subject to the random lottery.  Last year, in April 2013, there was also a random lottery to allocate the approximately 130,000 H-1B filings among the total of 85,000 H-1B visas.

H-1B Filings Not Picked by the Lottery or Filed After the Cap is Reached Will be Rejected and Returned

H-1B cases filed over the first five business days in April but not picked by the random lottery or H-1B cases filed after April 7th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Premium Processing Clock for New H-1B Cases to Start At a Later Date

In connection with the high level of H-1B filings, USCIS is likely to change the way they would process premium processing H-1B cases filed under the H-1B cap.    Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.      For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing,  USCIS is likely to indicate that that for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, the premium processing “clock” will begin later in April, most likely around April 15th.     This means that even for cases filed on April 1, 2014, the premium processing 15-day response window would not start until later in April.   Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) should not be affected.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  this is the last call for starting an H-1B case with a chance of filing under the H-1B cap.

W will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us immediately.

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April 2014 Visa Bulletin – EB-2 and EB-3 India Unchanged; EB-3 ROW, China and Mexico Advance Again; No Movement in FB-2A

The U.S. State Department has just released the April 2014 Visa Bulletin which is the seventh Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB-2 India, the continued forward  movement in EB-3 ROW, China and Mexico, and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the April 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the April 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at November 15, 2004 and is expected to remain at this level for some more time (with possible forward movement later in the fiscal year).  EB-2 China moves forward by three (3) weeks to March 8, 2009 (indicating that the forward movement trend is slowing down and is likely to reverse soon).
  • EB-3 ROW, China and Mexico move forward by one (1) month to October 1, 2012.  EB-3 Philippines moves forward by six (6) weeks to June 15, 2007, while EB-3 India  remains unchanged at September 15, 2003.
  • The “other worker” moves forward by one (1) month to October 1, 2012 for ROW, China and Mexico.  It moves forward by six (6) weeks to June 15, 2007 for Philippines and remains unchanged at September 15, 2003 for India.

Summary of the April 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the April 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by three (3) weeks to February 22, 2007.   FB-1 Mexico moves forward by two (2) weeks to November 1, 1993 and FB-1 Philippines moves forward by two and a half (2.5) months to November 1, 2001.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It remain unchanged for Mexico at April 15, 2012
  • FB-2B ROW, China and India all move forward by seven (7) weeks to October 22, 2006.  FB-2B Mexico remains unchanged at May 1, 1993 while FB-2B Philippines also remains unchanged at June 8, 2003.

EB-2 and EB-3 India Remain Unchanged

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.   The reason for this lack of movement is the significant demand and pending cases at USCIS.   Last fall we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with the subsequent several Visa Bulletins, confirm our predictions.

The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until this summer).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 China Continues to be Ahead of EB-2 China

Over the past three months or so, our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (October 1, 2012) is more advanced than the date for EB-2 China (March 8, 2009).

In some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.   Also not entirely unexpected is the retrogression in FB-2A for Mexican nationals — the Department of State has been cautioning that they see significant demand in this category and a retrogression would be forthcoming.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the April 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 April 2014 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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USCIS Reverses OPT Extensions Denied Due to Volunteering or Unpaid Work

Our office had received a number of inquiries and we have worked with a number of individuals, universities and their DSOs who had seen a spike in OPT extension (STEM OPT extensions, most often) which were denied by USCIS due to the fact that the F-1 holder had engaged in volunteering or unpaid work during the term of their initial OPT term due to allegedly exceeding the unemployment maximum allowed for OPTs.      After a number of inquiries to USCIS were raised, USCIS has announced that such denials were issued in error and will work on reinstating the applications (and status) to those F-1 holders who may be affected.

The USCIS Announcement

USCIS’s announcement is dated February 6, 2014 and states plainly that some 17-month OPT STEM extensions were denied in error.     The relevant OPT policy guidance (SEVP OPT 2010 Policy Guidance, Section 7.2.1) states that:

“Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.”

STEM OPT extension applications were denied (in error) solely because the USCIS adjudicator made the determination that the F-1 OPT holder exceeded the unemployment allowance (90 days for 1st year of OPT) and violated their F-1 status, thus making them ineligible for STEP OPT extensions.    As it was clear and as it is confirmed now by USCIS, it appears that such denials were based on inadequate training and/or misinterpretation of the relevant guidance by USCIS adjudicators.

Was Your STEM OPT Extension Application Denied Due to Volunteering/Unpaid Work?

USCIS has created an avenue available to those whose STEM OPT extensions were denied solely on this ground.   The student should contact the Service Center which issued the denial decision.   Specific instructions are below:

If a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by sending an email message to the applicable dedicated student mailbox (listed below). In the email message, the student should provide his or her full name, as well as his or her USCIS receipt number relating to the denied OPT STEM extension application.

  • California Service Center: CSC.StudentEAD@uscis.dhs.gov
  • Vermont Service Center: VSC.Schools@uscis.dhs.gov
  • Texas Service Center: TSC.Schools@uscis.dhs.gov
  • Nebraska Service Center: NSC.Schools@uscis.dhs.gov

Conclusion

We are happy to hear that USCIS, upon making a determination of a pattern of incorrect decisions, has reversed course and  has created an avenue to affected F-1 students to reinstate their F-1 status and OPT STEM application.      Unfortunately,  for many affected individuals this kind of announcement and relief may come too late.   For example, some F-1 students whose STEM OPT extensions were denied have already left the US or have moved on to a different status.

Our office stands ready to assist F-1 students who may have been affected by this kind of STEM OPT denial.  Please contact us for an evaluation of your case.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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March 2014 Visa Bulletin – EB-2 India Unchanged; EB-3 ROW, China and Mexico Advance Again; No Movement in FB-2A; FB-2A Mexico Retrogression

The U.S. State Department has just released the March 2014 Visa Bulletin which is the sixth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB-2 India, the continued forward  movement in EB-3 ROW, China and Mexico, the fact that FB-2A remains unchanged with a (relatively) recent cutoff date, and the significant 18-month retrogression for FB-2A Mexico.

Summary of the March 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the March 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at November 15, 2004 and is expected to remain at this level for some more time (with possible forward movement later in the fiscal year).  EB-2 China moves forward by five (5) weeks to February 15, 2009.
  • EB-3 ROW, China and Mexico move forward by three (3) months to September 1, 2012.  EB-3 Philippines moves forward by two (2) weeks to May 1, 2007, while EB-3 India  moves forward (finally!) by two (2) weeks to September 15, 2003.
  • The “other worker” moves forward by three (3) months to September 1, 2012 for ROW, China and Mexico.  It moves forward by two (2) weeks to May 1, 2007 for Philippines and moves forward by two (2) weeks to September 15, 2003 for India.

Summary of the March 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the March 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by one (1) month to February 1, 2007.   FB-1 Mexico moves forward by two (2) weeks to October 15, 1993 and FB-1 Philippines remains unchanged at August 15, 2001.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It retrogresses for Mexico by moving back almost 18 months to April 15, 2012.
  • FB-2B ROW, China and India all move forward by seven (7) weeks to September 1, 2006.  FB-2B Mexico remains unchanged at May 1, 1993 while FB-2B Philippines moves forward by two (2) weeks to June 8, 2003.

EB-2 India Remains Unchanged; EB-3 India Barely Moves Forward

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.  In the fall of 2013, we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with the subsequent three Visa Bulletins, confirm our predictions.    The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW, China and Mexico Move Forward Again

In contrast to EB India, we note that the EB-3 ROW, China and Mexico categories continue to move forward (again) and with a good pace.   Last month the forward movement in this category was two months, following a six-month forward movement in the January 2014 Visa Bulletin.   This is another significant movement and would help many EB-3 applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.   Overall, the EB-3 ROW, China and Mexico categories have advanced by almost one year over the past three months.

EB-3 China Continues to be Ahead of EB-2 China

Over the past couple of months or so, our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (September 1, 2012) is more advanced than the date for EB-2 China (February 15, 2009).

In some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged; FB2A Mexico Retrogresses Significantly

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.   Also not entirely unexpected is the retrogression in FB-2A for Mexican nationals — the Department of State has been cautioning that they see significant demand in this category and a retrogression would be forthcoming.

We urge those FB-2A Mexico nationals who are current now and who would not be current as of March 1 to consider filing their I-485 application as soon as possible to take advantage of this (rare) opportunity to file I-485 and obtain work and travel authorization documents for as long as the I-485 remains pending.    Please contact us if we can help.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the March 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Visa Bulletin Predictions – Employment-Based

The March 2014 Visa Bulletin also provides a general estimate on the movement of the cutoff dates over the next months.

EB-1.   This category is expected to remain current.

EB-2 ROW.  This category is expected to remain current.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  No forward movement expected.

EB-3 ROW.    After the last few months’  significant forward movement, as demand (number of filings) increases, the forward movement may stop or the dates may even retrogress.   .

EB-3 China.  Expected to track the worldwide (ROW) date.

EB-3 India.  “Little or no” forward movement expected.

EB-3 Philippines.  Expected to keep moving forward by three to six weeks per month.

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 March 2014 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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February 2014 Visa Bulletin – EB India No Movement; EB-3 ROW, China and Mexico Advance Again; No Movement in FB-2A

The U.S. State Department has just released the February 2014 Visa Bulletin which is the fifth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB India, the slowing forward movement in EB-3 ROW, China and Mexico and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the February 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the February 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at November 15, 2004 and is expected to remain at this level for some time.  EB-2 China moves forward by one (1) month to January 8, 2009.
  • EB-3 ROW, China and Mexico move forward by two (2) months to June 1, 2012.  EB-3 Philippines moves forward by two (2) months to April 15, 2007, while EB-3 India  remains unchanged (again) at September 1, 2003.
  • The “other worker” moves forward by two (2) months to June 1, 2012 for ROW, China and Mexico.  It moves forward by two (2) months to April 15, 2007 for Philippines and remains unchanged at September 1, 2003 for India.

Summary of the February 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the February 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by three (3) weeks to January 1, 2007.   FB-1 Mexico moves forward by only one (1) week to October 1, 1993 and FB-1 Philippines moves forward by six (6) weeks to August 15, 2001.
  • FB-2A remains unchanged (again) for all nationalities.  All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by five (5) weeks to July 8, 2006.  FB-2B Mexico moves backwards by eleven (11) months to May 1, 1993 while FB-2B Philippines moves forward by three (3) weeks to May 22, 2003.

EB India Remains Unchanged

Earlier this fall, in October, we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with this February 2014 Visa Bulletin, confirm our predictions.    The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW, China and Mexico Move Forward Again, But Slowly

In contrast to EB India, we note that the EB-3 ROW, China and Mexico categories continue to move forward (again) but not as fast as they have been advancing over the past few months.   This month, the movement was only  by two months — compared to the forward movement of six months in the January 2014 Visa Bulletin.   This is another significant movement and would help many EB-3 applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.

EB-3 China More Advanced than EB-2 China

Over the past month or so, our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (June 1, 2012) is more advanced than for EB-2 China (January 8, 2009).

Very often, an EB-2 China applicant seeks to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date and be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the February 2014 Visa Bulletin (EB-3, specifically) may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 February 2014 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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January 2014 Visa Bulletin – EB India No Movement; EB-3 ROW, China and Mexico Advance Significantly Again; No Movement in FB-2A

The U.S. State Department has just released the January 2014 Visa Bulletin which is the fourth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB India, the significant (six months) forward movement in EB-3 ROW, China and Mexico and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the January 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the January 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at November 15, 2004 and is expected to remain at this level for some time.  EB-2 China moves forward by one (1) month to December 8, 2008.
  • EB-3 ROW, China and Mexico move forward by six (6) months to April 1, 2012.  EB-3 Philippines moves forward by five (5) weeks five to February 15, 2007, while EB-3 India  remains unchanged at September 1, 2003.
  • The “other worker” moves forward by six (6) months to April 1, 2012 for ROW, China and Mexico.  It moves forward by five (5) weeks to February 15, 2007 for Philippines and remains unchanged at September 1, 2003 for India.

Summary of the January 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the January 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by three (3) weeks to December 8, 2006.   FB-1 Mexico remains unchanged (again) at September 22, 1993 and FB-1 Philippines also remains unchanged (again) at July 1, 2001.
  • FB-2A remains unchanged (again) for all nationalities.  All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by one (1) month to June 1, 2006.  FB-2B Mexico remains unchanged at April 1, 1994 while FB-2B Philippines moves forward by five (5) weeks to May 1, 2003.

EB India Remains Unchanged

Earlier this fall, in October, we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with this January 2014 Visa Bulletin, confirm our predictions.    The December 2013 Visa Bulletin showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW, China and Mexico Move Forward Significantly (Again) By Six Months

In contrast to EB India, we note that the EB-3 ROW, China and Mexico categories move forward (again) very significantly – by six months from October 1, 2011 to April 1, 2012.   This is another very significant movement and would help many EB-3 applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the January 2014 Visa Bulletin (EB-3, specifically) may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 January 2014 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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December 2013 Visa Bulletin – EB-2 India Major Retrogression; EB-3 ROW Moves Forward by a Year; No Movement for FB-2A

The U.S. State Department has just released the December 2013 Visa Bulletin which is the third Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the major (over 3.5 years) retrogression in EB-2 India, the significant (1 year) forward movement for EB-3 ROW and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the December 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the December 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India retrogresses, as we anticipated, by three years and seven months to November 15, 2004.  EB-2 China moves forward by one (1) month to November 8, 2008.
  • EB-3 ROW, China and Mexico move forward by one (1) year (not a typo!) to October 1, 2011.  EB-3 Philippines moves forward by three (3) weeks to January 8, 2007, while EB-3 India  retrogresses by three (3) weeks back to September 1, 2003.
  • The “other worker” moves forward by one (1) year to October 1, 2011 for ROW, China and Mexico.  It moves forward by three (3) weeks to January 7, 2007 for Philippines and retrogresses by three (3) weeks back to September 1, 2003 for India.

Summary of the December 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the December 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward, although slowly.  FB-1 ROW, China and India all move forward by three (3) weeks to November 15, 2006.   FB-1 Mexico remains unchanged at September 22, 1993 and FB-1 Philippines also remains unchanged at July 1, 2001.
  • FB-2A remains unchanged (again) for all nationalities.  All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by five (5) weeks to May 1, 2006.  FB-2B Mexico remains unchanged at April 1, 1994 while FB-2B Philippines moves forward by three (3) weeks to March 22, 2003.

Not Good News for EB India:  Major Retrogression Hits EB-2 India; EB-3 India Also Moves Back

A couple of weeks ago, our office shared in detail our expectations that there would be a major retrogression in EB-2 India.      The December 2013 Visa Bulletin shows that our expectations were absolutely correct even though many of our EB India clients and readers would be disappointed by this news.     We expect that EB-2 India would remain severely retrogressed for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to stop the rate of new filings until USCIS and DOS are able to approve the pending cases and “clear the demand.”

EB-3 ROW Moves Forward Significantly By One Year

In contrast to EB India, we note that EB-3 ROW moves forward very significantly – by one year from October 2010 to October 1, 2011.   This is a very significant movement and would help many EB-3 ROW applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

Visa Bulletin Predictions – Employment-Based

The December 2013 Visa Bulletin also provides a general estimate on the movement of the cutoff dates over the next months.

EB-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, depending on demand, a cutoff date towards the end of the fiscal year may be introduced.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  No forward movement.

EB-3 Rest of World (ROW).    After this month’s significant forward movement, it is possible to see certain additional forward movement to stimulate “demand” for the next several months.   Afterwards, the movement may stop or even retrogress.   There should be any forward movement beyond February.

EB-3 China.  Expected to track the worldwide (ROW) date.

EB-3 India.  No forward movement expected.

EB-3 Philippines.  Expected to keep moving forward by three to six weeks per month.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the December 2013 Visa Bulletin (EB-3 ROW, specifically) may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 2013 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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Visa Bulletin Predictions and Updates from Charles Oppenheim – Major Retrogression in EB-2 India (October 23, 2013)

Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim.  Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.   Our access and proximity to Mr. Oppenheim allows us to provide immediate updates on expected Visa Bulletin movements and we are proud to be among the first to report.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some sense of the movement of the priority dates and also on short- and long-term immigrant visa number trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 India will retrogress significantly in the December 2013 Visa Bulletin — going back to late 2004 or early 2005.   EB-3 India will remain unchanged or retrogress slightly over the near term.    EB-3 ROW will move forward significantly (by a year) in the near term (few months), with possible slowdown towards the middle of the fiscal year.   

General Visa Number Trends

Mr. Oppenheim spent a few minutes to describe the visa number allocation process and reiterated the fact that in the employment-based context, especially, the demand for visa numbers is greater because of dependents being added — each green card application case is, therefore, “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  For example, approximately 45% of the visa numbers are used by the primary beneficiaries with the balance of 55% taken up by derivative beneficiaries (spouses and children).   As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for porting and are now applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in addition to EB-2 visa numbers, are expected to remain oversubscribed.

He also explained that the number of EB-3 to EB-2 porting cases is very significant and because the mechanics of the EB-3 to EB-2 porting system does not allow advance notification to the Department of State’s Visa Office.   This causes a significant number of EB-3 to EB-2 porting cases to “appear” without advance warning to the Visa Office and, as a result, the Visa Office has to hold cutoff dates back to accommodate such porting case.   As an example, Mr. Oppenheim cited that between October 1 and October 22nd his office noted that there were approximately 800 Indian nationals who ported from EB-3 to EB-3.   Additionally, Mr. Oppenheim shared that in addition to EB-3 to EB-2 porting cases for Indian nationals, who are the majority of such cases, he sees an increasing number of EB-3 to EB-2 porting cases from nationals of other countries under the “Rest of World” (ROW) category.

Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news, especially for EB-2 India.   Because of the significant number of EB-2 India filings early this year and because of the very high number of EB-3 to EB-2 porting cases, Mr. Oppenheim indicated that EB-2 India will retrogress significantly (to late 2004 or early 2005) in the upcoming Visa Bulletin and would be held back for a significant period of time, very likely until the summer of 2014.

Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years.   He cited EB-5 China category where the demand has been growing steadily (approximately 15% over the year before) and that a cutoff date for EB-5 China is possible later this fiscal year (possibly around June 2014).   This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India and China forward movement.

On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December, and January visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, Mr. Oppenheim suggested that depending on demand he may introduce a cutoff date towards the end of the fiscal year.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  This is the major headline from our meeting with Mr. Oppenheim –  EB-2 India is expected to retrogress significantly – by several years back to late 2005 or early 2005 as early as the next Visa Bulletin.     It is expected that EB-2 India will remain at that level (late 2004 or early 2005) until the summer of 2014.    The rationale behind this severe retrogression in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to stop the rate of new filings until USCIS and DOS are able to approve the pending cases and “clear the demand.”

EB-3 Rest of World (ROW).  This category is expected to move forward significantly (up to one year) over the next one or two months to stimulate “demand” for the next several months.

EB-3 China/Philippines.  Each of these two categories is expected to keep moving forward by 2 weeks per month.

EB-3 India.  Unfortunately, this category continues to be oversubscribed and there is no forward movement expected in the next (December 2013) Visa Bulletin.     In addition, Mr. Oppenheim indicated that a retrogression is very possible in the near future.   This would be caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   However, as a positive sign, as many EB-3 India applicants are porting into EB-2, there is some possibility that some EB-3 visa numbers may be “freed” simply because some EB-3 candidates will drop out of the EB-3 demand line after receiving a green card under a newly ported EB-2 category.

EB-5.   Mr. Oppenheim suggested that the demand for EB-5 is on an upward trajectory and he indicated that the most recent fiscal year noted a 15% increase in EB-5 China cases.   This makes it likely that there would be a cutoff date introduced towards the summer for EB-5 China (only).

Visa Bulletin Predictions – Family-Based

Additionally, Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months for the family-based categories as well.

FB-1 ROW.   This category is expected to advance by 3-5 weeks per month.

FB-2A.   This category is expected to be held at its current level for the foreseeable future.  Mexico is likely to retrogress.

FB-2B.  This category is expected to advance by 3-5 weeks per month.

FB-3.  This category is expected to advance by 3-5 weeks per month.

FB-4.  This category is expected to advance by 2-3 weeks per month.

On Predicting the Visa Bulletin Cutoff Dates

Mr. Oppenheim shared his thoughts on the ability  of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the retrogression of EB-2 India in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down or retrogress EB-2 India to be able to accommodate EB-2 India applicants with early  priority dates.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  We understand, as Mr. Oppenheim does, that his comments and predictions are going to cause significant disappointment in EB-2 and EB-2 India applicants, specifically.     Our EB-2 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.    Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

Also, many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2.   We are happy to help analyze and assist in such EB-3 to EB-2 India or China porting cases.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  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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