EB2 Visa Numbers Depleted for India and China

MurthyDotCom and MurthyBulletin readers were alerted on March 29, 2012 in our news item DOS Confirms Lack of Enough EB2 India / China Visa Numbers, that the U.S. Department of State (DOS) had internally retrogressed the EB2 India and China cutoff dates. The retrogression will be reflected in the May 2012 Visa Bulletin, but actually became necessary at the end of March 2012. As explained here, this means that most, if not all, EB2 India and China adjustment-of-status (I-485) applications cannot be approved until more immigrant visa numbers become available.

Background: EB2 India and China Retrogression

As explained in the March 29, 2012 NewsBrief cited above, we at the Murthy Law Firm received direct confirmation from the DOS that the EB2 category for India and China had to be retrogressed due to heavy usage of visa numbers. The DOS stated that this retrogression was effective March 23, 2012 and that the internal cutoff date is now August 15, 2007. Our firm has received a number of EB2 I-485 approvals dated March 26, 2012. It appears, therefore, that the USCIS acted that day on the last cases for which EB2 visa numbers were available.

While the DOS has stated that the cutoff date is August 15, 2007, there do not appear to be any immigrant visa numbers available at this time even for EB2 India / China cases with earlier priority dates. This is based on the wording of DOS communications, and separate feedback at the case adjudications level to Murthy Law Firm attorneys.

EB2 India / China Numbers to Become Available October 1, 2012

If all the visa numbers have been fully depleted in the EB2 India / China categories for fiscal year 2012 (FY12), this means that pending I-485 cases will await the allocation of visa numbers for FY13, which commences October 1, 2012. The DOS will establish a new cutoff date in the October Visa Bulletin, depending upon their estimates of the demand for visa numbers as compared to the supply of such numbers.

This cutoff date will then be adjusted throughout FY13 in each monthly visa bulletin. The immigrant visa number system has certain limitations intended to allocate the visa numbers throughout the fiscal year; so not all the visa numbers will be available at the start of FY13. One should not expect, therefore, that there will necessarily be enough numbers for all pending cases in October 2012. Not all cases filed in the past few months will become somehow automatically current in October.

Dates Were Moved to Ensure No Wastage of Visa Numbers

Retrogression was inevitable, as explained in a number of our NewsBriefs, available on MurthyDotCom, regarding the rapid forward movement in recent visa bulletins of the EB2 India / China cutoff dates. The cutoff date was advanced significantly in order to generate demand for visa numbers and to fill the I-485 case pipeline with post-summer 2007 cases.

Visa numbers are supposed to be allocated so that they are not all depleted before the end of the fiscal year. The cutoff dates in the visa bulletin are based on estimates of expected demand for those numbers and the ability of the U.S. Citizenship and Immigration Services (USCIS) and U.S. consulates to process “green card” cases through to approval.

The DOS relies in large part on information from the USCIS to establish the cutoff dates. If that information is inaccurate, problems arise in the estimates. Another important factor is USCIS processing times. The USCIS worked remarkably quickly to adjudicate EB2 I-485s, once the visa numbers became available. Their processing times decreased by several months or more, with cases taking as little as three months from filing to approval in many instances. Some cases moved through the system even more quickly. A visa number is used for each approval, so numbers were depleted earlier than anticipated.

April 2012 Visa Bulletin Allows Filings to Continue

Despite the fact that the DOS has had to retrogress the visa numbers prior to April, the April 2012 Visa Bulletin remains valid as a basis for continued I-485 filings. The cutoff date of May 1, 2010 in the April Visa Bulletin is unchanged. Those who have priority dates that fall prior to May 1, 2010 in EB2 India and China still are permitted file their I-485 cases in April 2012.

If one elects, for any reason not file in April 2012, and their priority date is no longer current, the individual and any dependant family members must wait until their priority date become current again in order to file the I-485. The wait will be until at least October 2012 and, potentially, much longer.

Respond to Fingerprint Notices, RFEs, and Other Requests

The USCIS can continue to process the EB2- based I-485 cases in all respects, except for approval. Even though the USCIS cannot approve such cases, these can be denied if there is reason to do so. It is important to remain vigilant about one’s case. Applicants must comply with fingerprinting notices, or their cases can be denied due to abandonment. It is vital to respond to all requests for evidence (RFEs), or one’s case could be denied. The same is true of all interview-scheduling notices and other requests.

EAD and AP can be Approved Without Visa Number

The USCIS can and will continue to approve employment authorization documents (EADs) and advance parole (AP) requests for those who have filed I-485s. These benefits do not require an available visa number as a requirement at the time of approval. If the I-485 was filed when the individual’s priority date was current, then it is possible to request and obtain the EAD and AP approvals.

AC21 is Potential Option for Some

Understandably, most people are disappointed to learn that this step in their “green card” process will not proceed for at least the next six months. Some may have the potential to use this delay to their advantage. If the I-485 remains pending for 180 days or more, they may be eligible to benefit from the AOS portability provisions under the American Competitiveness in the 21st Century Act (AC21). It is possible under AC21, in certain circumstances, to obtain green card approval via a job offer other than the one set out in the PERM labor certification and I-140 petition. This option requires that the new job be in the same or similar job classification as the job in the PERM labor and I-140. It also requires that the I-485 remain pending with the USCIS for at least 180 days.

Conclusion: Check MurthyDotCom for Updates

The absence of available visa numbers was confirmed first by the Murthy Law Firm and immediately posted on MurthyDotCom for the benefit of the immigrant community. We will continue to guide our readers during this transitional time and provide reliable information on visa numbers and the visa bulletin as we obtain any further clarifications and insights. We understand how critical this topic is to many of our readers.

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