Developments in 2012 and Planning for 2013 (Part 1 of 2)

Parts 1 & 2 of this MurthyDotCom NewsBrief examine some of the key immigration developments of 2012. Among the topics covered are how these developments could affect our readers in 2013 and recommendations for strategic planning on the U.S. immigration law front in 2013. The focus here is the advancement, followed by severe retrogression of employment-based, second preference (EB2) cutoff dates for individuals born in India and China. An analysis of these issues should prove helpful in career planning and reviewing immigration options for family members. [See Part 2 of this MurthyDotCom NewsBrief.]

Early 2012 Cutoff Date Advancement

Calendar year 2012 started with significant advancement of the cutoff dates in EB2 for India and China. In January 2012, the EB2 India and China cutoff dates moved forward by almost ten months. In February 2012, the cutoff dates moved forward by a year for both India and China. The following month, March 2012, the cutoff date advanced yet again by four months. Thus, by March 2012, the EB2 cutoff date for India and China had reached May 2010. The cutoff date advancement meant that many individuals born in India and China were able to file the application for adjustment of status (form I-485), as the final stage in their permanent resident (“green card”) cases. It also led to the granting of permanent resident status for many I-485 applicants who filed previously.

Severe Retrogression of Priority Dates by May 2012

By the end of March 2012, all of the EB2 visa numbers allocated to India and China for fiscal year (FY) 2012 were depleted. As a result, while I-485 cases could still be filed in EB2 through April – and, to a far lesser extent, even in May – there were no longer any visa numbers available to allow for approval of those cases. These matters were explained in our NewsBriefs, DOS Confirms Lack of Enough EB2 India/China Visa Numbers (29.Mar.2012), and DOS Confirms EB2 India and China Limit Reached (27.Apr.2012).

Priority Date Retrogression Saga Continues into 2012

For the months of June through September 2012, the U.S. Department of State (DOS) Visa Bulletin showed EB2 India and China as unavailable due to the depletion of visa numbers. To make matters worse, even once the new FY began in October 2012, the cutoff date in EB2 for India was set at September 1, 2004, as explained in October 2012 Visa Bulletin: Severe EB2 Retrogression (14.Sep.2012). This date has not advanced as of the January 2013 Visa Bulletin.

China fared better, with a cutoff date of July 15, 2007 at the outset of FY13. As of the January 2013 Visa Bulletin, the EB2 China cutoff date has reached December 8, 2007.

Career Options with Priority Date Retrogression

One important result of the fluctuations in the EB2 cutoff dates during 2012 is that there are many individuals who filed I-485s, but must await further movement of cutoff dates in order to be eligible for approval and adjustment of status to permanent residence. This has implications for individuals from both a career and family perspective.

From a career standpoint, prolonged retrogression creates options for job changes by taking advantage of the adjustment-of-status portability benefits under the American Competitiveness in the 21st Century Act (AC21). An explanation of this can be found in our NewsBrief, AC21 Portability Options Created by Retrogression (23.Jul.2012). Many foreign nationals are taking advantage of the AC21 adjustment-of-status portability option to transition to better positions, either within their current companies or with new employers.

Family Issues with Priority Date Retrogression

From a family perspective, retrogression creates both opportunities and complications. Many dependent spouses were able to file their I-485s with a primary applicant. Along with the I-485 filing comes the ability to request an employment authorization document (EAD). This unrestricted employment authorization is a welcome relief to many spouses who previously were unable to work in the United States.

If Primary Obtained I-485 Approval, but Dependent/s Did Not

One rather unique wrinkle involves cases in which the primary spouse obtained approval of the I-485 and is now a permanent resident. For these individuals, as we at the Murthy Law Firm previously have suggested, it is worthwhile considering filing a family-based case for the dependent spouse. This is in addition to, not instead of, pursuing the dependent, employment-based case. It is simply a way for these individuals to avail themselves of all potential options, given extreme retrogression and general uncertainty regarding priority date movement. This option is covered in our MurthyDotCom article, Strategy to Deal with EB Retrogression: I-130 Family Petition (24.Sep.2012).

If Primary Filed I-485, but Dependent/s Did Not

If the principal applicant filed the I-485 but the dependent family members did not, then the principal must maintain nonimmigrant status in order for all dependents to remain legally in the United States. While some dependents hold independent nonimmigrant statuses, many do not. Thus, the primary beneficiary must continue to hold a nonimmigrant status, such as an H1B, so that his/her family can stay in the United States in H-4 status.

Priority Date Retention: Upgrades and Job Changes

There are many who have not yet filed an I-485 either because they are in EB3, or because they missed out or were not eligible for the opportunity created by the forward movement in early 2012, discussed above. For these individuals, the immigration strategies in 2013 often involve the concept of priority date retention.

EB3 to EB2 “Upgrade” and Transfer of Priority Date

For those in EB3, the strategy known as the EB3 to EB2 upgrade may seem less attractive in light of EB2 retrogression. However, it remains a viable strategy that simply may take longer to yield the desired result. The key to this strategy is the eligibility to keep or retain the priority date in one’s case, once the employer’s I-140 petition has been approved. This allows a person with an approved I-140 in the EB3 category to shift to EB2 while taking advantage of the earlier, EB3 priority date. It is important to understand that, in this strategy, only the priority date is retained from the EB3 case. All other aspects of the case, including PERM labor, must start anew. This option is covered in more detail in EB2 “Upgrades” – Priority Retention and Online Degrees (11.May.2012).

New Job: Transfer / Retention of Earlier Priority Date

The ability to retain the priority date can be valuable to one who is in the EB2 category already, but is seeking to change jobs. If one has not filed the I-485 and, thus, does not qualify for AC21, a job change means that it generally is necessary to start the PERM labor certification process for the green card all over again. However, if the I-140 has been approved for the individual, it is possible to request retention of the priority date in the next I-140 filing. This allows for job changes to be made and, if all goes well in the next PERM case, one may avoid losing the valuable priority date.

Conclusion

For many, much of the planning regarding employment-based green card cases involves coping with the reality of priority date retrogression. This means taking into account one’s long-term career plans as well as any dependent family members.

The Murthy Law Firm will continue to provide the latest updates regarding any priority date developments. We are available to provide guidance and representation in connection with all stages of employment-based green card filings. Those who need advice or assistance are welcome to contact the Murthy Law Firm.

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