DOS Provides Insight on Visa Availability - Jan 2006 Update
Posted Feb 03, 2006
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We at the Murthy Law Firm are aware that many of our readers keep their eyes on the monthly U.S. Department of State (DOS) Visa Bulletin, the dates of which are always available on MurthyDotCom. Those whose green card cases are in limbo until visa numbers become available in their categories and for their countries of chargeability have particular interest in these numbers. Although there certainly is still a significant problem with visa number unavailability, some good news exists for those in this situation. The DOS has indicated that there is less demand for employment-based visa numbers than anticipated. When establishing the Visa Bulletin cutoff dates, the DOS relies upon anticipated levels of demand from the U.S. Citizenship and Immigration Services (USCIS) for adjustment of status (AOS) cases and the U.S. consulates for immigrant visa cases. The DOS has confirmed that the demand from the USCIS has been lower than expected.
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In order to avoid a surplus of numbers in the last quarter that can be used neither for immigrant visa consular processing nor for AOS, priority date cutoffs have been moving forward. If or when the anticipated demand for visa numbers actually increases, however, the visa numbers or priority dates may again retrogress (or move backwards). We at the Murthy Law Firm have been following the movement of the cutoff dates closely each month. Our most recent MurthyBulletin article on the topic, Visa Bulletin: February 2005 (Jan 20, 2006), is available on MurthyDotCom. Following are the DOS's predictions for the future, based on the discrepancy between actual demand and anticipated demand for visa numbers.
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EB First and Second Preference
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At present, there is not a need to retrogress (establish cutoff dates) in the worldwide Employment-Based (EB) First and Second preference cases. Worldwide refers to "all chargeability areas except those listed" separately in the Visa Bulletin. Currently, in EB First (EB1) and Second preference categories (EB2), the two countries that have cutoff dates are India and China. The reason there is no need to retrogress the worldwide category is that demand has not reached a level necessitating this action. Demand for the visa numbers in this group can be met by the available supply. At present, it appears that the EB1 category would be in more danger of retrogressing than the EB2 category. Again, however, neither category is expected to retrogress in the near future.
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The priority date numbers for mainland China and India are expected to continue moving forward in the EB1 and EB2 categories over the next few months. This, too, is due to lower demand than anticipated.
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EB Third Preference
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The DOS had expected to use numerous immigrant visa numbers for 245(i)-eligible cases this year. To benefit from 245(i), a potential applicant pursuing an employment-based case needed to have a labor certification or I-140 petition filed on or before April 30, 2001, and to have been physically present in the U.S. on Dec. 21, 2000. There were a great many cases filed on or slightly before the April 30, 2001 deadline. To date, there has been much less demand for immigrant visa numbers this fiscal year for those April 2001 cases than anticipated. At this time, the DOS is assuming that there are still quite a few 245(i)-eligible cases pending in the U.S. Department of Labor's (DOL) Backlog Processing Centers (BPCs). Until the DOL completes these cases, so that they can move forward at the USCIS, the cutoff dates will continue to move forward. Mainland China is expected to continue to track with the worldwide dates in the EB3 category.
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The visa numbers for persons born in India will move forward in the EB3 category, but they will likely continue to move more slowly than the other countries because of the volume of EB3 cases still pending for persons born in India.
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Conclusion
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We appreciate these helpful insights from the DOS. The emphasis on trying to avoid the waste of any of the visa numbers is particularly encouraging. MurthyDotCom and MurthyBulletin readers will be kept up to date regarding the Visa Bulletin and visa numbers, so that they will have the information they need to make their plans appropriately.