Visa Bulletin August 2017

The August 2017 Visa Bulletin is now in effect and with this month's visa bulletin we see retrogression in the EB-2 category for all countries, and continued backlogs in the EB-1 category for both India and China.  The Visa Bulletin is a publication from the U.S. Department of State, released monthly, that informs beneficiaries of employment-based and family-based immigrant petitions when they are eligible to undertake consular processing for immigrant visas or apply for adjustment of status in the United States for securing their lawful permanent resident ("green card") status.  In many categories and for several populous countries, there can be backlogs and years of waiting for a green card to become available.  Typically, the EB-1 category (available for Aliens of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers) is current all year round - meaning if a foreign national meets that criteria, he or she may file their green card application concurrently with the EB-1 petition.  Similarly, the EB-2 category for persons with advanced degrees or filing under the National Interest Waiver category is current for foreign national from most countries (China and India are notable exceptions) all year round.

With the July Visa Bulletin, the EB-1 category became backlogged for persons from India and China and that trend now extends to the EB-2 category for all other countries effective August 1, 2017.  Since the U.S. government runs on a fiscal year that begins October 1, most observers expect these categories will again become current this fall.  This trend, however, shows us that these categories are highly sought-after throughout the year and applicants would be wise to file as early in the fiscal year as possible, as waiting until the summer months brings with it a risk for backlogs and unavailability of green cards until the next fiscal year.

If you have questions concerning immigrant visa availability and the potential effects on your case, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

DOS releases June 2017 Visa Bulletin - EB-1 retrogression for China & India

As of June 1, 2017, foreign nationals from India and China filing in the EB-1 category may be temporarily unable to submit their I-485 Adjustment of Status applications concurrently with their I-140 employment-based immigrant visa applications. The EB-1 category is an employment-based category for priority workers that includes: 

• Aliens of Extraordinary Ability;
• Outstanding Professors and Researchers; and,
• Multinational Managers and Executives. 

According to the U.S. Department of State's ("DOS") June 2017 Visa Bulletin, the Final Action Chart shows the priority date for Indian and Chinese nationals has retrogressed to January 1, 2012. However, the Dates of Filing Chart lists those two countries (as well as all others in the EB-1 category) as "current." As of May 10, 2017, USCIS has not indicated which chart it will use for determining eligibility for filing adjustment of status applications. Based on past practice, USCIS will likely use the Final Action Chart. This means that as of June 1, 2017, Indian and Chinese nationals with priority dates earlier than January 1, 2012 will be eligible to submit their green card applications, and those with later priority dates will have to wait until immigrant visas become available in the coming months.  It may not be until October (when the U.S. government's new fiscal year begins) that the EB-1 category becomes current again for India and China.

Charles Oppenheimer, Chief of the Visa Control and Reporting Division with DOS, had previously stated EB-1 and EB-2 Worldwide demand at USCIS had increased dramatically, and had predicted a final action cut-off date would be imposed for EB-1 China and India no later than July. The EB-1 category remained current for nationals of all countries except India and China. If you have questions about the visa bulletin or eligibility for filing for adjustment of status, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.   

Visa Bulletin projections according to DOS's Charlie Oppenheim

In hopes of obtaining more in-depth analysis and insight into future immigrant visa availability than that provided in the monthly Visa Bulletin, each month the American Immigration Lawyers Association ("AILA") "checks-in" with Charlie Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS).  From these discussions, AILA can provide practitioners, employers and foreign nationals better projections so all parties can strategize accordingly.  Highlights from the December 2016 discussions include:

• EB-1: Based on current demand, Charlie predicts that a "final action cut-off date" will need to be imposed for EB-1 India and EB-1 China later this fiscal year.  If this happens, Form I-140 petitions can continue to be filed with USCIS but Form I-485 Adjustment of Status application cannot be filed until the priority date for those preference categories is current.  This could result in several months of delay, as was seen in fall 2016, so applicants who may be affected by this potential retrogression should consider filing their applications as soon as possible. 
• EB-2 Worldwide: Charlie expects to impose a "final action cut-off date" for EB-2 Worldwide at some point due to sizeable demand.  Lingering demand from cases that otherwise would have been approvable in August and September 2016 is partly responsible for this surge in demand, as are EB-3 India upgrades.
• EB-2 China: China has already exceeded its EB-2 quarterly limit, so there is unlikely to be any major forward movement.
• EB-2 India: Charlie continues to hope that EB-2 India will recover to the November 22, 2008 final action date retrogression from May 2015. However, EB-3 upgrades could negatively impact that recovery.
• EB-3 Worldwide: Demand has declined, allowing Charlie to advance this category slightly in January 2017. However, at some point when EB-2 Worldwide becomes subject to a "final action cut-off date", we may see applicants filing petitions to downgrade from EB-2 to EB-3 which will increase demand.

USCIS to use Dates for Filing chart from November Visa Bulletin

Exactly one year after the U.S. Department of State ("DOS") began publishing two charts per visa preference category in its monthly Visa Bulletin, U.S. Citizenship and Immigration Services ("USCIS") announced in September that applicants for Adjustment of Status could use the "Dates for Filing" chart in the October 2016 Visa Bulletin for almost all family-based and employment-based categories. The only notable exception to this change of policy was the 5th preference employment-based category, which must continue to use Final Action Dates. 

When DOS introduced the two chart model in September 2015, USCIS responded by saying each month it would separately indicate whether it would adhere to the Final Dates of Action chart or the Dates for Filing chart for determining whether a foreign national may submit an application to adjust status (commonly referred to as the "green card" application). Between September 2015 and September 2016, USCIS consistently announced that applicants must look to Final Dates of Action before submitting their applications for adjustment of status.  For example in the July 2016 Visa Bulletin, DOS listed the Final Action Dates for the EB-2 category for China as January 1, 2010, meaning Chinese nationals with an approved I-140 listing a priority date of January 1, 2010 or earlier could submit their green card applications. The Dates for Filing in that same visa category was June 1, 2013, but because USCIS did not accept this chart for purposes of filing, applicants had to adhere to the Final Action Dates chart. 

In October 2016, however, USCIS for the first time permitted applicants to look to the Dates for Filing chart for when they could submit green card applications, which has made a significant difference for a number of backlogged categories. In November 2016, USCIS continued this trend, allowing applicants to again refer to the earlier Dates for Filing chart for determining if they may submit their green card applications. This is significant for potential applicants in the EB-2 China, EB-2 India, and EB-3 China categories, who are now eligible to file for green card applications as much as a year and a half earlier than the Final Action Dates charts indicate. For example the November 2016 Visa Bulletin lists EB-2 China Final Action Date as July 15, 2012, whereas the Dates for Filing in the same category is March 1, 2013.  Although applicants are unlikely to see approval of their Adjustment of Status applications prior to the Final Action Dates chart matching their priority date, they still receive some benefits from this earlier filing date. In most circumstances eligible applicants can submit applications for temporary work and travel cards along with their green card applications, and dependent family members may also submit applications, allowing for greater flexibility for work authorization and travel. 

If you have questions about the Visa Bulletin, this recent change of policy by USCIS, or whether you or your company's employees may be affected by this change, please contact one of the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

Visa Bulletin update - some good news, finally!

As predicted by many observers, the Department of State's Visa Bulletin for October 2016 shows forward movement on the "Final Action" chart for many employment-based preference categories.  All nationalities will be current for the EB-1 category, which is reserved for Individuals of Extraordinary Ability, Outstanding Professors/Researchers, and Multi-National Executives/Managers.  This category was backlogged in August and September for Chinese and Indian nationals. The EB-2 category, which is for professionals holding advanced degrees, Individuals of Exceptional Ability, and those applying in the National Interest Waiver category, will be current for all nationalities except for China and India. This category was backlogged in August and September for all countries, so although this forward movement does not help Chinese and Indian nationals it does benefit individuals from all other countries in this category.  The EB-3 category remains slightly retrogressed for all nations, with more severe backlogs for nationals of India, the Philippines and China. 

For the first time in Visa Bulletin history, USCIS announced that it will accept applications for Adjustment of Status (also commonly referred to as "green card" applications) from qualified foreign nationals based on the October Bulletin's "Dates for Filing" chart for EB-1, EB-2, and EB-3 categories and all Family Based Categories. This is a significant development and major departure from prior policy where USCIS would only recognize the "Final Action Dates" chart. For example, the Final Action chart lists 15 January 2007 as the current priority date for Indian nationals in the EB-2 category, while the Dates for Filing chart lists 22 April 2009.  To be sure, USCIS use of the Dates for Filing chart will not decrease the oppressively long wait times for green card approval.  This shift in policy should, however, provide individual applicants and their employers with many of the benefits that come with a pending adjustment application-employment authorization cards, advance parole, and the flexibility to change jobs in some circumstances.  

To view a copy of the October Visa Bulletin, visit the U.S. Department of State's website. If you have questions regarding priority dates and eligibility for filing adjustment of status applications, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Major changes in the August 2016 Visa Bulletin

As of August 1, 2016, foreign nationals from India and China filing in the EB-1 category will be temporarily unable to submit their I-485 Adjustment of Status applications concurrently with their I-140 employment-based immigrant visa applications. According to the U.S. Department of State's ("DOS") August 2016 Visa Bulletin, Indian and Chinese nationals with priority dates of January 1, 2010 and earlier will be eligible to submit their green card applications and those with later priority dates will have to wait until immigrant visas become available in the coming months. The EB-1 category remained current for nationals of all countries except India and China. Charles Oppenheimer, Chief of the Visa Control and Reporting Division with DOS, stated this cut-off date for China and India is expected to end on October 1, 2016 and adjudications can then resume on all EB-1 applications for permanent residence.

The August 2016 Visa Bulletin also has a worldwide cut-off date of February 1, 2014 for EB-2 beneficiaries. EB-2 beneficiaries include those with approved Labor Certifications from the Department of Labor for those with advanced degrees or equivalent and applicants applying in the National Interest Waiver category. This worldwide cut-off is also expected to end on October 1, 2016 making these petitions current and processing of permanent residence applications available for all countries other than China and India. According to Mr. Oppenheimer, significant movement will also be made in October for all countries in the EB-3 preference category.  Together, these changes will allow many thousands of EB-1, EB-2 and EB-3 workers to apply for Adjustment of Status or seek consular processing of their immigrant visa applications this fall. If you have questions about the visa bulletin or eligibility for filing for adjustment of status, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.