Summary of the August 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the August 2010 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by slightly over three (3) months to March 1, 2006, EB-2 India moves forward by five (5) months from October 1, 2005 to March 1, 2006.
• EB-3 ROW moves forward by nine and a half months (9.5) months to June 1, 2004, EB-3 China  moves forward by slightly over one (1) month to September 22, 2003, while EB-3 India moves forward by slightly over one (1) month to January 1, 2002.  EB-3 Mexico remains unavailable.
• The “other worker” category moves forward by a few months, to May 15, 2002 for ROW and China and to January 1, 2002 for India.

Substantial Forward Movement Continues

The notable forward movement in EB-2 and some EB-3 categories continues in this month’s visa bulletin as well.   This significant movement is due to the fact that there are some visa numbers available from other countries have not been reached yet and such countries’ per-country limit has not been reached.  As a result, as we are getting close to the end of the fiscal year, and after taking the worldwide demand into account, the State Department has determined only 8,100 of the total available EB-2 preference numbers would be used in that quarter.   In this case, the unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits.

Forward Movement Is Temporary

Note that the substantial forward movement  does not indicate a trend; instead, the last two visa bulletins’ forward movement was to ensure that no available visa numbers remain unused due to poor allocation of the unused numbers.  We expect that there be some retrogression over the next 1-3 months.

Please do not hesitate to contact us if you have any questions or if we can help you prepare and file your I-485 adjustment application, should your priority date become current.

Summary of the July 2010 Visa Bulletin

Below is a summary of the July 2010 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China remains unchanged at November 22, 2005, and, most notably, EB-2 India moves forward by ten (10) months from February 1, 2005 to October 1, 2005.
• EB-3 ROW moves forward by almost two (2) months to August 15, 2003, EB-3 China also moves forward by almost two (2) months to August 15, 2003, while EB-3 India moves forward by one (1) month to November 22, 2001.  EB-3 Mexico remains unavailable.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is  unavailable.

Finally Movement in EB-2 India

Previously we wrote about the lack of movement in the EB-2 India category for the past four months.  Finally, there is a substantial forward movement in EB-2 India which should benefit at least some of our clients and readers.  Please do not hesitate us if you have any questions or if we can help you prepare and file your I-485 adjustment application.

The State Department added another country to the list of oversubscribed countries – Dominican Republic.  This means that for all family and employment-based categories, there is now a category for the Dominican Republic, in addition to China (mainland-born), India, Mexico and the Philippines.

Summary of the June 2010 Visa Bulletin

Below is a summary of the June 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (2) months to November 22, 2005, and EB-2 India remains unchanged at February 1, 2005.  This is the third month in a row when EB-2 India has remained unchanged.
• EB-3 ROW moves forward by almost two (2) months to June 22, 2003, EB-3 China moves forward also by two (2) months to June 22,  2003, while EB-3 India moves forward by three (3) weeks to October 22, 2001.  EB-3 Mexico remains unavailable.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is now unavailable.

Why Does EB-2 India Not Move?

Our readers and clients have asked us what is the cause of the lack of movement in the EB-2 India category.  Over the past few years, with the severe retrogression of EB-3 India, many Indian nationals have been able to start and obtain an approval of a new I-140 under the EB-2 category.  Our office has handled a number of such EB-3 to EB-2 “upgrade” cases.  As a result, many of the EB-3 India applicants are now EB-2 India applicants, resulting in delay in the movement of EB-2 India priority dates.   We would be happy to analyze your EB-3 case and help you if you can “port” it to EB-2 – please contact us for a free initial consultation.

Here is a summary of the May 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (1) month to September 22, 2005, and EB-2 India remains unchanged at February 1, 2005.  This is the second month in a row when EB-2 India has remained unchanged.
• EB-3 ROW moves forward by almost three (3) months to April 22, 2003, EB-3 China moves forward also by almost (3) months to April 22,  2003, while EB-3 India moves forward by three (3) weeks to October 1, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is now unavailable.

Here is a summary of the April 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by six (6) weeks to August 22, 2005, and EB-2 India remains unchanged at February 1, 2005.
• EB-3 ROW moves forward by almost fix (6) weeks to February 1, 2003, EB-3 China moves forward also by six (6) weeks to February 1, 2003, while EB-3 India moves forward by over two (2) months to September 8, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001.

Here is a summary of the March 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by six (6) weeks to July 8, 2005, and EB-2 India, moves forward by only one (1) week to February 1, 2005.
• EB-3 ROW moves forward by almost three (3) months to December 15, 2002, EB-3 China moves forward by almost three (3) months also to December 15, 2002, while EB-3 India moves forward by only one (1) week to July 1, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001.

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by three (3) weeks to May 22, 2005, and EB-2 India, again, remains unchanged at January 22, 2005.
• EB-3 ROW moves forward by almost two (2) months to September 22, 2002, EB-3 China moves forward by almost two (2) months also to September 22, 2002, while EB-3 India remains unchanged.
• Other worker visa numbers remains unchanged at June 1, 2001.

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (1) month to May 1, 2005, and EB-2 India remains unchanged at January 22, 2005.
• EB-3 ROW moves forward by two (2) months to August 1, 2002, EB-3 China moves forward by two (2) months to August 1, 2002, while EB-3 India moves forward by almost two (2) months to June 22, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one month to June 1, 2001.

• EB-1 remains current across the board.
• EB-2 remain unchanged – EB-2 ROW remains current, EB-2 China remains unchanged at April 1, 2005 and EB-2 India remains at January 22, 2005.
• EB-3 ROW remains unchanged at June 1, 2002, EB-3 China remains unchanged at June 1, 2002, while EB-3 India moves forward by one week to May 1, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one week to May 1, 2001.

• EB-1 remains current across the board.
• EB-2 China moves forward by a week to April 1, 2005 while EB-2 ROW remains current and EB-2 India remains unchanged at January 22, 2005.
• EB-3 ROW remains unchanged at June 1, 2002, EB-3 China moves forward by three months to June 1, 2002, while EB-3 India moves forward by one week to April 22, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one week to April 22, 2001.

EB-2 Numbers Indicate Minor Movement

The October 2009 Visa Bulletin dates suggest a minor forward movement as follows:

• EB-2 China moves forward by a little over two (2) months from January 8, 2005 to March 22, 2005;
• EB-2 India moves forward  by two (2) weeks from January 8, 2005 to January 22, 2005; and
• EB-2 Rest of World (“ROW”) remains current.

EB-3 Visas Are Available Although Forward Movement May Be Slow

As expected, the October 2009 Visa Bulletin brings a number of changes.  Most notably, the EB-3 category is no longer unavailable and the visa cut-off dates are as listed below.  We also provide the visa cut-off dates from the April 2009 Visa Bulletin which was the last time EB-3 visas were available.

• EB-3 China has a cut-off date of February 22, 2002 (compared to March 1, 2003 in the April 2009 Visa Bulletin);
• EB-3 India has a cut-off date of April 15, 2001 (compared to November 1, 2001 in the April 2009 Visa Bulletin);
• EB-3 ROW has a cut-off date of June 1, 2002 (compared to March 1, 2003 in the April 2009 Visa Bulletin).

We have included a comparison with the April 2009 EB-3 visa numbers to illustrate that even though the State Department has made EB-3 visas available, the fact that the government chose to set cut-off dates in October 2009 which are earlier than the April 2009 cut-off dates indicates that a slow movement in EB-3 over the 2009 fiscal year is to be expected.

EB-5 Is Unavailable

The EB-5 category is now unavailable.  This is due to the expiration of the EB-5 Pilot program on September 30, 2009, which means that no visas can be issued after September 30 under the EB-5 category until Congress extends it.  Once this happens, the visa availability is expected to become current.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 China and India:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are January 8, 2005.
• EB-3 is unavailable for all categories.
• Other worker visa numbers are also unavailable.

Based on the last few visa bulletins, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 China and India:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are October 1, 2003.
• EB-3 is unavailable for all categories.
• Other worker visa numbers are also unavailable.

In one of the comments to the August 2009 Visa Bulletin, the State Department notes that the retrogression of EB-2 China has been necessary to take into account the high demand of visa issuances so far this fiscal year.   As a result, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

Lower Unused Visa Numbers in EB-4 and EB-5.  According to Mr. Oppenheim, EB-4 and EB-5 have seen increased demand which may result in retrogression.  However, what is more important, the high demand of EB-4 and EB-5 has resulted in a fewer visa numbers being made available to other categories, such as EB-2 and EB-3.  This has resulted in an increased pressure on the visa numbers for EB-3, EB-2 and possibly EB-1 for China and India.

EB-1 Demand Increased; EB-1 China or India May See Retrogression.  Mr. Oppenheim noted that demand for EB-1 Rest of World (ROW) has increased but it expected to remain current until the end of FY2009.  However, EB-1 for China and India, while current for July 2009, may require the establishment of a cut-off date if EB-1 demand remains heavy.  This is important because EB-1 for China and India may no longer be the “instant concurrent-filing” category.  We urge our readers and clients from China or India who are considering EB-1 to consider filing as early as possible.

EB-2 China and India – “Grim” Prognosis; Long Delays Are Likely.  Mr. Oppenheim did not deliver good news for EB-2 China and India applicants.  The July 2009 cut-off date is January 1, 2009, and may become unavailable in August or September 2009.  There are reported 25,000 EB-2 India cases which have been reviewed by USCIS and are waiting at the Department of State for a visa number. By law, all countries have a limit of 2,800 EB-2 numbers per year plus any “fall across” and “fall down” numbers from EB-1, EB-4 or EB-5 categories or from the EB-2 category from other countries.  Therefore, and unfortunately, without legislative relief, the waiting time for Indian or Chinese EB-2 applicants may be measured in years, even decades.

EB-3 ROW.  The EB-3 will remain unavailable the remainder of this fiscal year. As the Department of Labor worked its way through the long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year. The Department of State currently estimates that, as of October 1, 2009, the EB3 worldwide cut-off date will be March 1, 2003. There will be extended delays in this category.

EB-3 China, India and Mexico.  According to Mr. Oppenheim, EB-3 numbers for China, India and Mexico applicants will be unavailable for the remainder of the fiscal year.  Furthermore, it is estimated that, based on current demand for visa numbers that as of October 1, 2009, the following cut-off dates could be established: China will be March 1, 2003; India will be November 1, 2001; and Mexico will be March 1, 2003. These estimates are based on “current demand” in the first 7 ½ months of FY2009, and a lot could change between now and early September when October dates are established (meaning that these predicted cut-off dates may retrogress even more).

General Numbers Update.  Finally, Mr. Oppenheim provided some numbers on the cases pending at various stages of immigrant processing.  There are approximately 25,000 EB-2 and 25,000 EB-3 applications queued at the State Department awaiting visa numbers.  There are ~2.7 million family-based applicants on the waiting list for consular processing.  There also could be ~50,000 employment-based applicants on waiting lists for consular processing.

Conclusion.  The news from Mr. Oppenheim is not good.  Long delays and limits on some categories are to be expected.  Indian and Chinese applicants for EB-2 and EB-3 face years, even decades-long, wait period for a visa number.  EB-1 is also under pressure for Chinese and Indians.   We will continue monitoring the visa numbers and provide updates and reliable predictions as we counsel our clients on the best ways to avoid lengthy green card delays.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 China:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are January 1, 2000.
• EB-3 is unavailable for all categories.
• Other worker visa numbers are also unavailable.

In one of the comments to the July 2009 Visa Bulletin, the State Department notes that the retrogression of EB-2 China has been necessary to take into account the high demand of visa issuances so far this fiscal year.   As a result, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 India:  EB-2 ROW (Rest of World) is current, EB-2 China remains February 15, 2005, and EB-2 India retrogressed to January 1, 2000.
• EB-3 is unavailable for all categories.
• Other worker visa numebers are also unavailable.

In one of the comments to the June 2009 Visa Bulletin, the State Department notes that “applicant demand for numbers, primarily for adjustment of status cases at Citizenship and Immigration Services offices, has been extremely heavy throughout the year.   As a result, visa availability during the final quarter could become limited as categories approach their annual numerical limits.”   At this point, it is not clear whether EB-2 will stay at January 1, 2000 for this month (June 2009) only or it will remain there for a few months due to the extremely heavy EB-2 India visa number demand.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories – EB-2 ROW (Rest of World) is current, EB-2 China remains February 15, 2005, and EB-2 India remains February 15, 2004.
• EB-3 applicants is unavailable for all categories.
• Other worker applicants are also unavailable.

The cut-off dates for the EB-3 and “Other Worker” categories were held and then retrogressed in an effort to bring demand within the average monthly usage targets and the overall annual numerical limits.   Despite these efforts, the amount of demand received from USCIS for adjustment of status cases with priority dates that were significantly earlier than the established cut-off dates remained extremely high.  As a result, these annual limits have been reached and both categories have become “unavailable.”    Visa availability in these categories will resume in October, the first month of the new fiscal year.

Please contact our office and we would be happy to evaluate your case and advise on the possibility of using or refiling your case in the EB-2 category.

Also, Charles Oppenheim of the State Department has indicated that further retrogression or “unavailability” at any time cannot be ruled out.” As a result, it is highly unlikely the EB-3 category will remain available in the near future. Further retrogression or “unavailability” may occur at any time.   As a result, immigrant visas can be issued by consular posts at interviews this month only if the consular post has obtained the visa number prior to the announcement of the cut-off. Additionally, USCIS will not approve any adjustments in the EB-3 category with cutoff dates before May 1, 2005, unless the visa number already had been assigned.

• EB-1 remains current across the board.
• EB-2 remains unchanged – EB-2 ROW (Rest of World) is current, EB-2 China remains February 15, 2005, and EB-2 India remains February 15, 2004.
• EB-3 applicants, however, will be disappointed again.  EB-3 ROW moves backwards by more than two (2) years to March 1, 2003.  EB-3 China moves forward by six (6) months to March 1, 2003.  EB-3 India moves forward byy only one (1) month to November 2001.

In light of these visa numbers, it becomes increasingly important to be able to file under the EB-2 category and avoid the very lengthy delays of the EB-3 category.  Please contact our office and we would be happy to evaluate your case and advise on the possibility of using the EB-2 category.

Beneficiaries who have an I-140 approved are eligible to retain their priority date if they have another I-140 approved for the same or a different EB category.   Under 8 CFR § 204.5(e), if more than one I-140 is approved for a single beneficiary, the beneficiary gets the benefit of the earliest priority date even if the I-140s are approved in different EB categories.

In a recent USCIS/AILS Liaison exchange, USCIS has acknowledged that the approval notice for the second I-140 should automatically reflect the earlier priority date if the beneficiary is eligible to retain it.  However, USCIS has confirmed our practice at the Capitol Immigration Law Group to clearly mark the the second I-140 filing (by bright cover sheet and including a copy of the earlier I-140 approval notice showing the earlier priority date).   USCIS has advised that second I-140s which do not retain the earlier priority date should be corrected by calling the NCSC (or Division 12 at CSC).

• EB-1 remains current across the board.
• EB-2 China moves forward by 45 days to February 15, 2005.  EB-2 India moves forward by 45 days to February 15, 2004.
• EB-3 applicants, however, will be disappointed.  There is no movement in most of the categories.  EB-3 India remains unchanged at October 15, 2001.  EB-3 ROW (Rest of World) remains unchanged at May 1, 2005.  EB-3 China moves forward slightly by 22 days to October 22, 2002.  Finally, EB-3 Mexico moves forward significantly by 17 months to March 15, 2003.

March’s Visa Bulletin continues to improve the EB-2 category and make it a very attractive option for many applicants.  Although this month’s EB-2 progress of 45 days is significantly less than the 6-month forward movement observed in last month’s visa bulletin, it seems that USCIS is making efforts to improve the efficiency of the EB-2 category.

In light of these visa numbers, it becomes increasingly important to be able to file under the EB-2 category and avoid the very lengthy delays of the EB-3 category.  Please contact our office and we would be happy to evaluate your case and advise on the possibility of using the EB-2 category.

• EB-2 ROW remains current.  EB-2 India and EB-2 China both move forward by approximately 6 months.  EB-2 India is now at January 1, 2004 while EB-2 China is at January 1, 2005.
• EB-3 ROW remains unchanged at May 1, 2005.  EB-3 India remains unchanged at October 15, 2001.  EB-3 China moves forward by 4 months to October 1, 2002.

The forward movement of certain EB-2 India/China and EB-3 China categories makes many applicants eligible for adjustment of status filing.  Please contact our office if we can provide you with any assistance with your adjustment of status application or if you have any questions in connection with the February 2009 Visa Bulletin.

EB-2 India has moved a month forward from June 2001 to July 2001.  EB-2 China has moved from June 2004 to July 2004.

EB-3 India has moved by only 15 days – from October 1, 2001 to October 15, 2001.  EB-3 ROW (Rest of the World) remains unchanged at May 1, 2005.

We have discussed previously that according to the State Department (which is responsible for issuing the Visa Bulletin),  the high demand being received from USCIS for employment-based immigrant visas indicates that they have a significant amount of cases with priority dates that are earlier than the established cut-offs.   This is likely to result in slow forward movement of the cut-off dates for most employment-based categories during the next few months.

According to the new procedure, which is effective immediately, I-485s are subject to the new procedure only when an immigrant visa has been made available, according to the State Department Visa Bulletin.   The new procedure allows submission via email of I-485 cases which are subject to review based on the visa numbers.  An automatic system picks up the cases and determines whether they are subject to review.  If they are, it has some mechanism to prioritize them and distribute the case to a case worker.

The procedures are as follows:

EB I-485 Cases

The procedure may be used by AILA-member  attorneys who see that a visa number is available to his or her client according to the Visa Bulletin.  The inquiry can be submitted as soon as the Visa Bulletin is published.

1. Identify all clients on one email whose visa numbers will be available according to the visa bulletin.
2. Send an email to streamline.tsc@dhs.gov
3. On the subject line, write “EB I-485/”MM” (Example:EB I-485/OCT)
4. In the body of the email, provide A numbers only. The system will use these A numbers to pull cases and distribute them to floor case workers.
5. If the applicant has more than one A number, type both separated by a “/” (Example: A111222333/A444555666)
6. If there are multiple family members, type them all on the same line separated by commas (Example: A111222333, A222333444, A444555666)

I-140 Cases

Attorneys who are AILA members can use this procedure when the filing date is prior to the processing time date for the I-140 as published on the USCIS website.

1. Identify all clients on one email whose filing dates are prior to the published timeframe
2. Send an email to streamline.tsc@dhs.gov
3. On the subject line write “I-140″
4. In the body of the email, provide A numbers only. If there is no A number on the receipt, provide the receipt number only.  (For stand-alone I-140s where the beneficiary is out of the U.S. and will be applying for a visa at the consulate).  Do not provide any additional information as the text of the email will be used to automatically check the submitted cases and pull the cases for distribution to floor case workers.
5. If the applicant has more than one A number, type both separated by a “/” (Example: A111222333/A444555666)

Full text of these instructions is available here.

We are AILA members and we will be happy to assist you in moving your case along using the new TSC streamline procedure.  Please contact us.

The lack of any movement of the EB visa numbers is likely due to the high number of filings USCIS has received after the opening of the fiscal year 2009 on October 1.  After many of the EB categories were unavailable throughout the summer, there was a high number of applications filed on or shortly after October 1.  We think that the lack of any movement in this month’s Visa Bulletin is intended to control the flow of applications and allow USCIS time to adjust its workflow.

If we could sum the results of the November 2008 Visa Bulletin, it would be “slow forward movement.”  According to the State Department (which is responsible for issuing the Visa Bulletin),  the high demand being received from USCIS for employment-based immigrant visas indicates that they have a significant amount of cases with priority dates that are earlier than the established cut-offs.   This is likely to result in slow forward movement of the cut-off dates for most employment-based categories during the next few months.

The Results

EB-1.  Employment-based first category (EB-1) is current for all countries.

EB-2 is current for all countries except China and India.  EB-2 China moved by two (2) months, from April to June 2004.  EB-2 India moved by two (2) months, from April to June 2003.

EB-3 China moved forward by four (4) months from October 2001 to February 2002.  EB-3 India moved forward by three (3) months, from July 2001 to October 2001.  EB-3 for the rest of the world (except Mexico and Philippines) moved forward  by four (4) months, from January to May 2005.

This significant retrogression for EB-2 China  and EB-2 India means that employment-based petitions for these two countries face very significant backlogs.  More importantly, the unavailability of visa numbers for EB-2 India and China means that even fewer highly qualified applicants would be unable to file their adjustment of status (I-485) petitions and avail their families of work and travel authorizations.

As we have discussed throughout the summer, the new fiscal year start on October 1, 2008, “opens” EB-3 categories which were unavailable since June.  The EB-3 category also brings bad news.  EB-3  China retrogressed from March 2003 in June to October 2001 now.  EB-3 India retrogressed from November 2001 in June to January 2001 now.  Finally, EB-3 Worldwide retrogressed from March 2006 in June to January 2005 now.  This means that a large number of EB-3 petitioners would remain pending for at least a significant period of time.

The good news for EB-2 applicants from India and China continues this month as well – the dates for EB-2 India and EB-2 China moved by two months, from June 1, 2006, to August 1, 2006.  There are no other changes to the employment-based dates.

However, there were some bad news for employment-based applicants in the EB-3 category.  Earlier in July, when the EB-3 category became “Unavailable” the comment was that it is expected that in October, upon the beginning of the new fiscal year, the EB-3 dates would return to their June 2008 values.  However, the State Department has revised this expectation and has indicated “the that continued heavy demand in those categories may require the establishment of cut-off dates which are earlier than those which had applied in June. ” Although this backward movement is not certain yet, a formal decision is expected in September.

Another important update related to the visa bulletin is the unavailability of visas in the “Other Workers” category – they are now unavailable (from April 2003 previously).  The visa bulletin explains that such unavailability is due to the numbers for the “Other Workers” category reaching their annual numerical limit.  It is expected that once the FY 2009 begins in October, the dates should return to April 2003.

This is excellent news for applicants in the EB-2 India category.  Stay tuned as we wil update this post with more information as the official State Department Visa Bulletin is distributed.

EB-3 Unavailable.  The July 2008 Visa Bulletin is out.  As we predicted in May, the Employment Based Third Category (EB-3) is now unavailable until the end of the Fiscal Year in October.   This means that no EB-3 cases will be approved until at least October.  It is expected that in October the EB-3 priority dates will return to their May/June level.

Good news for EB-2 India and China.   The July 2008 Visa Bulletin, however, brings good news to EB-2 applicants from India and China.  According to Section 202(a)(5) of the Immigration and Nationality Act, the total demand for EB-2 visas from countries other than India and China has been insufficient to meet the number of available visas; therefore, such estimated excess numbers have been allocated to EB-2 India and China.  It is expected that because Indian nationals constitute a larger proportion of the currently pending EB-2 cases, most of the newly available EB-2 visas will go to Indian nationals.

Unfortunately, there was no movement in the EB-3 category for any country.  There were more bad news for EB-3 applicants.  According to the June 2008 Visa Bulletin, the annual cap for EB-3 cases is expected to be reached in June; as a result, the EB-3 category is likely to experience retrogressions or visa unavailability beginning in July (stay tuned for the July 2008 Visa Bulletin in mid-June).  It is expected that in October, upon the start of the new fiscal year, the cut-off dates would recover to their present date.

Read the full June 2008 Visa Bulletin.

Michael Yates, the USCIS Associate Director for Domestic Operations testified in front of the Committee and although scheduling conflict did not permit our firm to be present at the hearing, we have reviewed the text of Yates’ prepared statement.

Unfortunately for us and our clients, Yates’ prepared statement does not seem to provide much forward-looking insight into the operations of USCIS.  The statement goes to great lengths to explain the visa categories, the processes for obtaining legal permanent residency and the historic numbers, but does little to show the millions of foreigners with backlogged pending applications how and when will the backlog be cleared and the process streamlined.

For completion, we are including the prepared statement of Stephen A. Edson, Deputy Assistant Secretary of State for Visa Servivce, U.S. Department of State.  Mr. Edson’s statement explains how the State Department allocates visa numbers and praises the State Department’s work in allocating the visa numbers so that close to 100% of the available visas in each Fiscal Year are used. 

In addition, the report provides an interesting historical distribution analysis of the number of green cards given out since 1900.

The report can be found here and the graphs with the data can be found here.

EB-2 China and EB-2 India moved slightly forward; unfortunately this movement was very minor, only by a month, to January 2004 for both.

See the full May 2008 Visa Bulletin.

See the full April 2008 Visa Bulletin.

EB3 – Employment-based, Third Preference

The best news is for applicants under the EB3 category.  The cutoff date for EB3 “worldwide” category and the Philippines moved forward significantly, to January 1, 2005, an advance of more than two years.  China moved forward by more than a year, to December 1, 2002.  India moved forward by few months, to August 1, 2001.

EB2 – Employment-based, Second Preference

While EB2 India is still unavailable, EB2 China has moved slightly forward to December 1, 2003.

This visa “unavailability” was anticipated as a result of the surge in demand in this visa category. Many foreign workers who had previously applied as EB3 (employment-based third preference) were caught in the labor certification backlog which lasted, for some, people several years. Many of these employees were able to refile their applications under the more attractive EB3 category due to experience they gained while waiting for labor certification approval. As a result, the number of EB3 petitions rose sharply over the past months and quickly exhausted the number of available EB3 visas.

The October 2008 Visa Bulletin, due to be released in September 2008 should “open” again EB3 visas for Indian nationals. Note that EB2 visa numbers are “current” for all other nationalities except China which is as of January 1, 2003.