The National Law Review recently published an article by Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lance Director Nagel, Lisa H. Barton, and Malcolm K. Goeschl of Morgan, Lewis & Bockius LLP regarding the October 2012 Visa Bulletin:
EB-2 category for China and India is no longer unavailable; cutoff dates remain for Rest of the World EB-2 category.
The U.S. Department of State (DOS) has released its October 2012 Visa Bulletin. The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident or to obtain approval of an immigrant visa application at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the cutoff dates specified by the DOS.
What Does the October 2012 Visa Bulletin Say?
EB-1: All EB-1 categories remain current.
EB-2: A cutoff date of January 1, 2012, has been imposed for foreign nationals in the EB-2 category from all countries except China and India; a cutoff date of July 15, 2007, has been imposed for foreign nationals in the EB-2 category from China; a cutoff date of September 1, 2004, has been imposed for foreign nationals in the EB-2 category from India.
EB-3: There is continued backlog in the EB-3 category.
The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:
China: February 8, 2006 (forward movement of 139 days)
India: October 15, 2002 (forward movement of 23 days)
Mexico: October 22, 2006 (forward movement of 92 days)
Philippines: August 1, 2006 (forward movement of 54 days)
Rest of the World: October 22, 2006 (forward movement of 92 days)
Developments Affecting the EB-2 Employment-Based Category
MEXICO, THE PHILIPPINES, AND THE REST OF THE WORLD
In July, for the first time in many years, the DOS imposed a cutoff date for individuals who qualify for the EB-2 category and are chargeable to a country other than China or India (Mexico, the Philippines, and the Rest of the World). Since July, the cutoff date for individuals from these countries had been January 1, 2009. The October Visa Bulletin announced that, as of October 1, 2012, the cutoff date will move forward to January 1, 2012. This means that, beginning on October 1, 2012, an individual chargeable to Mexico, the Philippines, or the Rest of the World with a priority date before January 1, 2012, may file an AOS application or an immigrant visa application. It is expected that the DOS will remove cutoff dates for these countries completely in November and that the EB-2 category will be “current” for individuals chargeable to these countries.
INDIA AND CHINA
The October Bulletin indicates a cutoff date of September 1, 2004, for EB-2 individuals chargeable to India and a cutoff date of July 15, 2007, for EB-2 individuals chargeable to China. The EB-2 category was previously unavailable to individuals chargeable to India or China. This means that EB-2 individuals chargeable to India or China with a priority date preceding these respective dates may file an AOS application or have the application approved on or after October 1 of this year. It appears that the U.S. Citizenship and Immigration Services has a large number of AOS applications for EB-2 Indian and Chinese nationals that have been “preadjudicated” and will be approved on October 1.
How This Affects You
Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static and unchanged. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the October 2012 Visa Bulletin in its entirety, please visit the DOS website here.
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