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US Department of State Issues November 2015 Visa Bulletin

The new bulletin shows no movement in filing date cutoffs and little movement in approval date cutoffs for those chargeable to India and China.

The November 2015 Visa Bulletin shows little change from the October 2015 Visa Bulletin issued on September 25. The new category of filing date cutoffs remains exactly the same as in October, and only a few visa categories in the Application Final Action Dates chart have changed. This alert addresses employment-based classifications.

Application Final Action Dates for Employment-Based Preference Cases

The application final action cutoff dates for employment-based preference classification show movement in the following categories (changes shown in BOLD):

Employment- Based	All Chargeability Areas Except Those Listed	China (mainland born)	India	Mexico	Philippines
1st	C	C	C	C	C
2nd	C	01FEB12	01AUG06	C	C
3rd	15AUG15	01JAN12	01APR04	15AUG15	15JUN07
Other Workers	15AUG15	01APR06	01APR04	15AUG15	15JUN07
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Nonregional Center (C5 and T5)	C	22NOV13	C	C	C
5th Regional Center (I5 and R5)	C	22NOV13	C	C	C

Movement in the Employment-Based Second Preference (EB-2) Classification

China second preference advanced to February 1, 2012 (one month): An individual chargeable to China in the second preference category may have his or her adjustment of status (AOS) or immigrant visa application approved if the person’s priority date is prior to February 1, 2012.

India second preference advanced to August 1, 2006 (15 months): An individual chargeable to India in the second preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to August 1, 2006.

Movement in the Employment-Based Third Preference (EB-3) Classification

China third preference advanced to January 1, 2012 (2.5 months): An individual chargeable to China in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to January 1, 2012.

India third preference advanced to April 1, 2004 (three weeks): An individual chargeable to India in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to April 1, 2004.

Philippines third preference advanced to June 1, 2007 (five months): An individual chargeable to the Philippines in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to June 1, 2007.

Movement in the Employment-Based Fifth Preference (EB-5) Classification

China fifth preference Nonregional Center (C5 and T5) advanced to November 22, 2013 (five weeks), and China fifth preference regional center (I5 and 45) is now available for those individuals whose EB-3 cases were filed prior to November 22, 2013.

Dates for Filing Employment-Based Visa Applications

Application filing date cutoffs are as shown below:

Employment- Based	All Chargeability Areas Except Those Listed	China (mainland born)	India	Mexico	Philippines
1st	C	C	C	C	C
2nd	C	01JAN13	01JUL09	C	C
3rd	01SEP15	01OCT13	01JUL05	01SEP15	01JAN10
Other Workers	01SEP15	01JAN07	01JUL05	01SEP15	01JAN10
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Nonregional Center (C5 and T5)	C	01MAY15	C	C	C
5th Regional Center (I5 and R5)	C	01MAY15	C	C	C

First and fourth preference classifications remain current for all chargeable categories, as does the classification for certain religious workers.

Employment-based second preference classification for those chargeable to the worldwide quota, Mexico, and the Philippines remains current.

Employment-based fifth preference classification for the worldwide classification, India, Mexico, and the Philippines remains current.

For complete details, see the full Visa Bulletin for November 2015.

ARTICLE BY Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton & Tracy Evlogidis of Morgan, Lewis & Bockius LLP

DOS vs USCIS: Visa Bulletin Games

Last week USCIS issued guidance stating that it will advise which of the two visa bulletin charts; Dates for Filing Visa Applications or Application Final Action Date applicants should use.

Today, USCIS released it’s first update on its new visa bulletin website stating that applicants CAN use the new “Dates for Filing” chart in October and November.

Unlike for the October visa bulletin, no changes have been made to the visa bulletin dates after the original publication.

ARTICLE BY Immigration Practice Mintz Levin of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

October 2015 Monthly AILA Check-In with Charlie Oppenheim

Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State, held his monthly meeting with AILA to shed light on the data in the recently-released Visa Bulletin.

Since the last AILA check-in with Charlie in September, the October 2015 Visa Bulletin, which was initially released on September 9, 2015, was republished on September 25, 2015, superseding the prior bulletin.

A class action law suit was filed against the U.S. Department of Homeland Security in response to these changes. This case was denied by the court and the Revised Visa Bulletin remains in effect.

The updated October Visa Bulletin listed the same Final Action Dates as the September 9 version of the Bulletin, but changed the Filing Dates in the following categories:

In this check-in with Charlie, the differences between the November 2015 and revised October Visa Bulletin are compared, and Charlie offers his predictions below:

Final Action Dates and Family-Based Preference Categories: The family-based categories continued to progress slowly and steadily, advancing approximately one month in most cases. F-1 Philippines jumped ahead one year from June 1, 2001 in October to June 1, 2002 in November. However, this advancement is somewhat deceptive, since F-1 Philippines retrogressed towards the end of this past fiscal year, moving from February 1, 2005 in May 2015 to dates in 2000 from June through September 2015. The October and November advancements merely represent a recovery from that retrogression. Charlie predicts that this category will likely continue to advance for the next month or so, depending on the level of demand that materializes.

Final Action Dates and Employment-Based Preference Categories: The EB-5 Regional Center Pilot Program and “certain religious workers” categories were originally listed as “unavailable” in the October Bulletin while Congress considered an extension of these programs. On September 30, 2015, both programs were temporarily reauthorized (until December 11, 2015), which resulted in those cut-off dates immediately becoming “Current” (with the exception of EB-5 China) for October. China EB-5 advanced to November 22, 2013, up from October 8, 2013 in the October Bulletin. (AILA Doc No. 15081203)

China EB-2 will advance one month in November from January 1, 2012 to February 1, 2012. China EB-3 will advance approximately two and a half months in November from October 15, 2011 to January 1, 2012. China EB-3 Other Workers will also move forward three months to April 2006.

India EB-2 will move forward 15 months from May 1, 2005 in October to August 1, 2006 in November. While this appears to be a big leap, it is largely the result of a correction based on the retrogression of this category late last fiscal year as the number of available visa numbers dwindled: The Final Action Date for EB-2 India reached December 15, 2013 in August 2015, but then retrogressed to January 1, 2006 in September. Charlie predicts that this category will likely continue to move forward.

The Final Action Dates for India EB-3 and EB-3 Other Workers will advance less than one month in November to April 1, 2004. Usage in this category has been particularly high and it is too early in the fiscal year for unused numbers from other categories to trickle down. Forward movement in this category should remain limited.

Final Action Dates for all Mexico EB categories will remain the same in November, with all categories current except for EB-3 and EB-3 Other Worker which are almost current at August 15, 2015. Charlie is watching these categories closely to see whether the forward movement during the last fiscal year will spur demand and impact these cut-off dates.

Philippines EB-3 and Other Workers categories will advance five and a half months in November to June 15, 2007. All other Philippines EB categories remain current.

Filing Dates

All of the employment-based Filing Dates listed in the Revised October 2015 Visa Bulletin are the same for November. The family-based Filing Dates also remain the same with the exception of:

Article By Patricia A. Elmas of Greenberg Traurig, LLP

USCIS Issues Further Guidance on the New Filing Date Visa Bulletin

In September, USCIS announced that some individuals would be eligible to file adjustment of status applications following a separate Dates for Filing Visa Applications (“filing date”) chart. This chart differed from the classic Visa Bulletin “priority date” chart now known as the Application Final Action Date chart. USCIS has now announced that it will provide information each month on when applicants should use the filing date versus the priority date chart to evaluate whether or not they can file an application to adjust status or immigrant visa application.

Timeline

The new USCIS process is slated to begin with the November 2015 Application Final Action Date chart, which was released on October 9th. Each month, USCIS will evaluate whether or not there are immigrant visa numbers available for each category and post on its website if individuals may use the filing date chart.

USCIS states that it anticipates, “making this determination each month and posting the relevant chart on our website within one week of DOS’ publication of the Visa Bulletin.”

Process

USCIS has clarified that the filing date chart may ONLY be used if the agency provides an update and information stating so on its website here. If no additional information is provided by USCIS, applicants should assume that they should follow the DOS Application Final Action Date chart to guide filing decisions and adjudication timing questions.

Original Visa Bulletin Not Restored

The July 2015 Visa Bulletin Brings Little Change On September 28, 2015, several highly-skilled immigrant workers from India and China filed a federal class action lawsuit in the State of Washington against the U.S. Department of State (“DOS”) and U.S. Department of Homeland Security (“DHS”) over revisions to the October 2015 Visa Bulletin (Revised Visa Bulletin). A temporary restraining order was subsequently filed on September 30, 2015.

Unfortunately on October 7, 2015, the court denied the plaintiffs’ request for a temporary restraining order. The court denied the request for a temporary restraining order because it found that (1) the plaintiffs failed to show a likelihood of success on the merits, and (2) the revision of the Visa Bulletin did not substantially alter the plaintiffs’ rights. According to the court, the Revised Visa Bulletin only clarified a prior incorrect statement of their rights.

The immediate effect of this decision is that the Revised Visa Bulletin will remain in effect and DHS will not be required to accept Adjustment of Status applications that could have been filed under the Original Visa Bulletin but not under the Revised Visa Bulletin. The underlying lawsuit, however, is still ongoing.

Many foreign nationals who very recently found themselves one step closer to having a green card are now looking at lengthy wait times once again. A good portion of these individuals have also incurred costs associated with their anticipated applications to adjust status including legal fees, medical exams, and passport photos. We will continue to monitor the progress of the case moving forward.

Article By Courtney B. Noce of Greenberg Traurig, LLP

Department Of State Releases September 2015 Visa Bulletin

Cutoff dates for EB-2 China and India retrogress to January 1, 2006. Cutoff dates for EB-3 China, India, and the Philippines advance to December 22, 2004.

The US Department of State (DOS) has released its September 2015 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 statuses to that of permanent residents or to obtain approval of immigrant visas at a US embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does The September 2015 Visa Bulletin Say?

The September 2015 Visa Bulletin shows a large retrogression of visa numbers for EB-2 China and India, and an advancement of six and a half months for the EB-3 China, Philippines, and India allotments. The cutoff date for F2A applicants in China, India, Philippines, and the worldwide categories will advance by two and a half months in September. The cutoff date for F2A applicants from Mexico will advance by three months.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to China will retrogress by nearly eight years, and the cutoff date for applicants in the EB-2 category chargeable to India will retrogress by two years and nine months. For both categories, the cutoff date has been set at January 1, 2006. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to the worldwide category and Mexico will advance by one month to August 15, 2015. The cutoff date for applicants in the EB-3 category chargeable to China, India, and the Philippines will advance by six and a half months to December 22, 2004.

EB-5: The cutoff date for applicants in the EB-5 category chargeable to China will advance by three weeks to September 22, 2013. The cutoff dates for applicants in the EB-5 category chargeable to the worldwide category remain current.

The relevant priority date cutoffs for foreign nationals in the EB-2 category are as follows:

China: January 1, 2006 (retrogression of 2,905 days)
India: January 1, 2006 (retrogression of 1,004 days)
Mexico: Current
Philippines: Current
Rest of the World: Current

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: December 22, 2004 (forward movement of 204 days)
India: December 22, 2004 (forward movement of 204 days)
Mexico: August 15, 2015 (forward movement of 31 days)
Philippines: December 22, 2004 (forward movement of 204 days)
Rest of the World: August 15, 2015 (forward movement of 31 days)

The relevant priority date cutoffs for foreign nationals in the EB-5 category are as follows:

China: September 22, 2013 (forward movement of 21 days)
Rest of the World: Current

Developments Affecting The Eb-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The September Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through September 2015.

China

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for EB-2 applicants chargeable to China. The September Visa Bulletin indicates a cutoff date of January 1, 2006, reflecting a retrogression of 2,905 days (nearly eight years). This means that applicants in the EB-2 category chargeable to China with a priority date prior to January 1, 2006 may file AOS applications or have applications approved in September 2015.

India

The August Visa Bulletin indicated a cutoff date of October 1, 2008 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates a cutoff date of January 1, 2006, a retrogression of two years and nine months. This means that applicants in the EB-2 category chargeable to India with a priority date prior to January 1, 2006 may file AOS applications or have applications approved in September 2015.

Developments Affecting The Eb-3 Employment-Based Category

China

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to China. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to China with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

India

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to India. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to India with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

The Philippines

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to the Philippines. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to the Philippines with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

Mexico

The August Visa Bulletin indicated a cutoff date of July 15, 2015 for EB-3 applicants chargeable to Mexico. The September Visa Bulletin indicates a cutoff date of August 15, 2015, reflecting forward movement of one month. This means that applicants in the EB-3 category chargeable to Mexico with a priority date prior to August 15, 2015 may file AOS applications or have applications approved in September 2015.

Rest of the World

The August Visa Bulletin indicated a cutoff date of July 15, 2015 for EB-3 applicants chargeable to the worldwide category. The September Visa Bulletin indicates a cutoff date of August 15, 2015, reflecting forward movement of one month. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to August 15, 2015 may file AOS applications or have applications approved in September 2015.

Developments Affecting The F2a Family-Sponsored Category

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for F2A applicants from Mexico. The September Visa Bulletin indicates a cutoff date of February 1, 2014, an advancement of three months. This means that applicants from Mexico with a priority date prior to February 1, 2014 may file AOS applications or have applications approved in September 2015.

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for F2A applicants from all other countries. The September Visa Bulletin indicates a cutoff date of March 1, 2014, reflecting forward movement of two and a half months. This means that F2A applicants from all other countries with a priority date prior to March 1, 2014 may file AOS applications or have applications approved in September 2015.

Developments In The Coming Months

It is anticipated that EB-2 visa numbers for China and India will advance again at the start of the 2016 fiscal year (October).

Regarding the Diversity Visa (“DV”) program, the US Department of State has warned that “[e]ntitlement to immigrant status in the Diversity Visa (“DV”) category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015. . . Numbers could be exhausted prior to September 30.”

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, backward, or remain static. 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 September 2015 Visa Bulletin in its entirety, please visit the DOS Website.

ARTICLE BY Eleanor Pelta & Eric S. Bord of Morgan, Lewis & Bockius LLP

Spring Forward, but Fall Behind: The September 2015 Visa Bulletin Brings Unwelcome News for Indian and Chinese “Green Card” Applicants in the Employment-Based Second Preference Category

Today, the Department of State (DOS) released the last visa bulletin for the 2015 fiscal year. Notably, major retrogressions are seen in the employment-based second preference category (EB-2) for both India and China. The EB-2 India category has retrogressed from October 1, 2008 toJanuary 1, 2006. The EB-2 China category has retrogressed almost eight years, from December 15, 2013 to January 1, 2006.

The employment-based third preference category (EB-3) for Mexico and Worldwide advances by one month. EB-3 China advances by six months and EB-3 India also saw an almost six- month advancement as well.

September is the last month of the government’s fiscal year and DOS has evaluated how many visa numbers are left to be issued. After performing this calculation, DOS adjusts the cutoff dates accordingly. Over the past six months, we have seen significant forward movement in the EB-2 category for India and China, and as such more petitions were filed and numbers were used. The retrogression stops this forward momentum for September, however once the new fiscal year begins October 1st more visa numbers should become available.

ARTICLE BY Michele D. Frangella of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

August Visa Bulletin – Monthly ‘Check-In’ with Charlie Oppenheim, Chief of the Visa Control and Reporting Division, DOS

Charles Oppenheim, chief of the Visa Control and Reporting Division of the U.S. Department of State, held his monthly meeting with AILA to shed light on the data in the recently released August Visa Bulletin. Among the highlights of meeting are the following:

1. China EB-3 Retrogression. The August Visa Bulletin shows that the EB-3 China category will have a cut-off date of June 1, 2004, a retrogression of seven years. One reason for this retrogression is that earlier in the year the EB-3 China category had advanced which generated sufficient demand to bring the overall number within the allowable annual limit. According to Charlie, the good news is that this category will progress forward in the beginning of the new fiscal year to a 2010 or maybe even a 2011 cut-off date.

2. Other EB-3 News. EB-3 Other Worker will retrogress to Jan. 1, 2004 (an additional two-year retrogression from where it is currently). There is a potential that the EB-3 category for China, India and the Philippines will move slightly forward (a few months) in September. EB-3 Worldwide and Mexico, Charlie predicts, will continue to advance in September, but hold steady for a few months at the beginning of the new fiscal year in October 2015.

3. EB-2 China and India. As predicted earlier by Charlie, EB-2 India remained unchanged and is not likely to change until October. EB-2 China moved forward to Dec. 15, 2003, a move of 2 1/2 months. This date is likely to move slightly forward or remain unchanged for September

4. F-2A Worldwide. Due to lack of demand in this category (Spouses and Children of Permanent Residents), the cut-off date for F-2A worldwide is advancing and is likely to continue to advance until demand increases. The worldwide August cut-off date for this category is Dec. 15, 2013

ARTICLE BY Shaoul Aslan of Greenberg Traurig, LLP

The July 2015 Visa Bulletin Brings Little Change

The Department of State’s July Visa Bulletin announced only a few modest changes in employment-based visa processing. Most significantly, the EB-3 subcategory for professionals and skilled workers will become unavailable for the Philippines.

Additionally, Indian nationals seeking classification under the EB-2 preference category will see no change from the month of June. Those seeking classification under the EB-3 and other workers categories will see a very small change from January 22, 2004 to February 4, 2004. This means the government is virtually experiencing a “delay” of 11 years. Priority dates for Chinese nationals share lack of progress. Individuals under EB-2, advanced only four months to October 1, 2013, while EB-3 and other workers remained the same.

Those individuals who have been impacted by a visa retrogression of any kind are encouraged to check the DOS Visa Bulletin each month in order to see if visa processing dates have moved under their approval category.

Employment-Based	All Chargeability Areas Except Those Listed	China – Mainland Born	India	Mexico	Philippines
1st	C	C	C	C	C
2nd	C	10/1/2013	10/1/2008	C	C
3rd	4/1/2015	9/1/2011	2/1/2004	4/1/2015	U
Other Workers	4/1/2015	1/1/2006	2/1/2004	4/1/2015	U
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted Employment Areas/Regional Centers and Pilot Programs	C	9/1/2013	C	C	C

ARTICLE BY Courtney B. Noce of Greenberg Traurig, LLP

DOS June 2015 Visa Bulletin – Department of State

The Department of State’s June Visa Bulletin on a whole brought relatively few changes of note.

Progress was made in the EB-2 category, where priority dates for Indian nationals advanced six months from April to October 1, 2008. Similarly, Chinese nationals experienced forward movement of one year in priority dates, with the Department of State (DOS) now processing cases with priority dates of June 1, 2013 or before.

The EB-3 category remains virtually unchanged across all areas, with the exception of the Philippines which retrogressed nearly two and half years from July 2007 to January 2005. Filipinos whose immigrant petitions were filed under the EB-3 skilled and professional workers category are now subject to a ten-year retrogression backlog.

In the EB-5 category, Chinese nationals with approved I-526 petitions carrying a priority date of May 1, 2013 or earlier are now current. Those with later priority dates will have to wait until their number is called and there are no timeline estimates available at this time.

Those individuals that have been impacted by a visa retrogression of any kind are encouraged to check the DOS Visa Bulletin each month in order to see if visa processing dates have moved under their approval category.

DOS Visa Bulletin june 2015

ARTICLE BY Shaun K. Staller of Greenberg Traurig, LLP

Application Final Action Dates for Employment-Based Preference Cases

Movement in the Employment-Based Second Preference (EB-2) Classification

Movement in the Employment-Based Third Preference (EB-3) Classification

Movement in the Employment-Based Fifth Preference (EB-5) Classification

Dates for Filing Employment-Based Visa Applications

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Filing Dates

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Timeline

Process

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Cutoff dates for EB-2 China and India retrogress to January 1, 2006. Cutoff dates for EB-3 China, India, and the Philippines advance to December 22, 2004.

What Does The September 2015 Visa Bulletin Say?

Developments Affecting The Eb-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

China

India

Developments Affecting The Eb-3 Employment-Based Category

China

India

The Philippines

Mexico

Rest of the World

Developments Affecting The F2a Family-Sponsored Category

Developments In The Coming Months

How This Affects You

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