Immigrant visas have become unavailable for Indian and Chinese nationals in the EB-2 category; DOS indicates that it may be necessary to establish a cutoff date for the EB-1 category.
The U.S. Department of State (DOS) has released its June 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 an American embassy or consulate abroad, provided that their priority dates are prior to the cutoff dates specified by the DOS.
What Does the June 2012 Visa Bulletin Say?
EB-1: All EB-1 categories remain current.
EB-2: Priority dates remain current for foreign nationals in the EB-2 category from all countries except China and India; immigrant visas are UNAVAILABLE for Indian and Chinese nationals in the EB-2 category.
As had been widely expected, the June Visa Bulletin indicates visa unavailability in the EB-2 category for individuals chargeable to India and China. The cutoff dates that were indicated in the May Visa Bulletin have been replaced with a “U” notation. This means that the annual quota of immigrant visas for EB-2 Indian and Chinese nationals has been exhausted for the 2012 fiscal year, and that no more immigrant visas for EB-2 Indian and Chinese nationals will be available until the 2013 fiscal year begins on October 1, 2012. When the October Visa Bulletin is published in mid-September, it is expected that the “U” notation will be removed from the EB-2 category for Indian and Chinese nationals and that cutoff dates will once again appear in this category. The DOS expects that the EB-2 India and China cutoff dates will not return to May 1, 2010 (the cutoff date indicated in the April Visa Bulletin), until the spring of 2013, however.
The practical effect of this immigrant visa unavailability is that, after June 1, no I-485 AOS applications for EB-2 Indian or Chinese nationals may be filed or approved until at least October of this year, regardless of the applicant’s priority date. Thus, even an EB-2 Indian or Chinese national with a 2006 priority date would not be able to file an I-485 application or have it approved. I-485 applications that are pending for EB-2 Indian and Chinese nationals will continue to be processed and Advance Paroles and Employment Authorization Documents will be issued as appropriate, but the I-485 applications themselves may not be approved until October 1, 2012, at the earliest.
Note: AOS applications for EB-2 Indian and Chinese nationals with current priority dates may be filed until May 31.
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: August 8, 2005 (forward movement of 129 days)
India: September 15, 2002 (forward movement of 7 days)
Mexico: June 8, 2006 (forward movement of 38 days)
Philippines: May 22, 2006 (forward movement of 21 days)
Rest of the World: June 8, 2006 (forward movement of 38 days)
DOS Predictions for the EB-1 Category and the Rest of the World EB-2 Category
The DOS has indicated that, in view of higher usage in the EB-1 category, it may be necessary to establish a cutoff date for the category, regardless of country of chargeability. The DOS has also indicated that a cutoff date may be established for the rest of the world EB-2 category (which is current at the moment), and that this may occur at any time in the next few months. Given the publication schedule of the Visa Bulletin, the establishment of such cutoff dates should be publicized at least two weeks before they become effective.
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 June 2012 Visa Bulletin in its entirety, please visit the DOS website.
Copyright © 2012 by Morgan, Lewis & Bockius LLP