As expected, the June Visa Bulletin, recently released by the Department of State, made EB2 for India and China unavailable. All EB3 categories continued their snail-like pace forward. There was also a warning that cut-off dates for the EB1 category and the EB2 category for all other countries may be necessary before the end of this fiscal year.
We knew it was too good to last and finally, the announcement has come. The DOS has confirmed that as of March 23rd, all available EB2 numbers for India and China for the current fiscal year have been exhausted. I-485 applications may continue to be filed as long as your priority date is current pursuant to the April Visa Bulletin and EAD and Advance Parole applications will continue to be processed however, cases can not be approved and permanent residency can not be granted until visa numbers are once again available. The DOS previously announced that the priority dates would retrogress to August 15, 2007 effective May 1st. As a practical matter, for purposes of adjudication (approval), the priority date has already retrogressed to Aug 15, 2007 however, for purposes of filing, the priority date will remain May 1, 2010. For many people, there remain several advantages to filing your 485 even though it can’t be adjudicated including: issuance of EAD cards for yourself and family members, issuance of advance parole travel documents for yourself and family members, flexibility afforded under AC21, elimination of the reliance on an H-1b visa and avoid the need for the ordeal of visa stamping. For IT staffing companies, there is a great incentive to encourage employees to process 485’s because in most cases, it eliminates the need for an H-1b and all of the restrictions and costs that accompany it. The DOS has published a nice document explaining how the allocation system and priority dates work in case you are curious.
On March 16, 2012, Charlie Oppenheim, Chief, Visa Control and Reporting at the Department of State, spoke at the American Immigration Lawyers Association’s Midwest Regional Conference in Chicago, IL. At this event, he noted that he will likely retrogress the dates for individuals in the EB-2 category who are from India and China to August 2007. This will probably occur in the May or June 2012 visa bulletin. In addition, Mr. Oppenheim stated that he expected that all of the visas in the EB-1 category will be used in FY 2012. As a result, there will be no spill down to the EB-2 category. For those individuals who have a pending adjustment of status and a current priority date, their case will continue to be adjudicated by USCIS. If you have a current priority date and have not yet filed your adjustment of status, we suggest that contact us as soon as possible about your case.
The DOS has released the April Visa Bulletin and unfortunately, the movement of EB2 dates for Indian and Chinese nationals halted with dates remaining the same as the March bulletin. Historically, a month where dates remain constant indicates that the DOS may have enough demand to utilize all available immigrant visas for a fiscal year and it would not be surprising if the date stayed at May 1, 2010 or retrogressed. The EB3 category continued its all too familiar pattern of inching forward.
Read the latest BALCA decision and then openly weep for the state of our employment based immigration system. In this case, the DOL Certifying Officer denied a PERM case on the basis that the ad language stated “may require employer-reimbursed travel” instead of “some positions may require travel” and determined that US workers could be confused by such language and not be aware that travel may be required. I’m sorry but, if you are mis-led by that language, you do not deserve consideration for employment in any job. The fact that the Certifying Officer even thought there may be confusion is beyond comprehension. Fortunately, BALCA ruled in the employer’s favor and ordered the case to be certified but, the appeal took almost 2 years and the overall case has been pending for almost 4. Sadly, of the 3 government agencies most involved in business immigration cases, the DOL, in spite of decisions like this is still light years ahead of the USCIS and the US Consulates (DOS) in following the law without prejudice and in operating efficiently.
HLG published an Immigration Alert covering several topics of interest. If you are not subscribed to HLG’s alert mailing list, you can subscribe at the HLG web-site.
Recently, the DOL released stats for PERM cases. Of particular interest is that the denial/withdrawal rate has increased to over 25% and of the over 24,000 cases currently pending, over 6,000 are being audited. Processing times for cases with the exception of BALCA appeals remains under 1 yr which by historical standards is excellent.
Earlier this week, the DOS released the March visa bulletin. The EB2 category for persons born in India or China saw another significant advancement of 4 months whereas all other categories continue to see slow but steady movement forward.
The DOS released the Feb Visa Bulletin and the priority dates for EB2 India and China moved forward by a full year to Jan 2010. The rapid movement over the past several months is due to reports from the USCIS of fewer than expected 485 filings. Future retrogression remains likely if the number of I-485 filings increases. All EB3 categories saw snail like movement forward and the predictions are for more of the same.
In the January Visa Bulletin released by the DOS, EB2 numbers for India and China moved ahead over nine months making priority dates current for all of 2008 and before. It is interesting to note the Bulletin’s comments on the relatively few new I-485′s that have been filed in recent months in spite of the rapid forward movement of dates. I bet if they go ask anyone who had a vacation planned but then cancelled in the summer of 2007, they could explain it to them.