October 2008 Visa Bulletin : Backward Movement
Posted Sep 19, 2008
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The U.S. Department of State (DOS) Visa Bulletin for October 2008 has been issued. This is the first Visa Bulletin of Fiscal Year 2009 (FY2009). As avid readers of MurthyDotCom may have learned when the Visa Bulletin chart for October was first posted on our website, the cutoff date for EB2 India moved backward considerably. The news for EB3 India, China, and Mexico was also bad, but not unexpected.
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Summary of Visa Bulletin
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Employment-Based, First Preference (EB1)
This category is current for all countries of chargeability.
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Employment-Based, Second Preference (EB2)
This category is current for all countries except India and China. The cutoff date for India retrogressed to April 1, 2003. The date for China is set at April 1, 2004. The October Visa Bulletin is applicable only as of October 1, 2008. Thus, anyone in the EB2 category who has not filed an I-485 application, and is otherwise eligible to do so under the cutoff dates reflected in the September 2008 Visa Bulletin, should file as soon as possible and ensure that the I-485 application reaches the USCIS on or before September 30, 2008.
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Employment-Based, Third Preference (EB3)
This category, which became unavailable in July 2008 for all countries of chargeability, has now received a new influx of numbers for FY2009. For that reason, cutoff dates have been reestablished. For the "All Countries of Chargeability" category and the Philippines, the cutoff date is January 1, 2005. For Mexico, it is July 1, 2002. China and India are set at October 1, 2001 and July 1, 2001, respectively. These rather dismal dates for India, China, and Mexico are the result of the very high demand for the limited immigrant visa numbers in this category. The EB3 (other worker) category has a cutoff date of January 1, 2003 for all countries.
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Employment-Based, Fourth / Fifth / Religious Workers and Targeted Employment
The EB4, EB5 (investor), religious workers, and the targeted employment categories are all current.
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Explanation
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We at the Murthy Law Firm are aware that these cutoff dates brought disappointment to many. The Visa Bulletin and visa numbers can be the source of much confusion. In reviewing many of the questions our clients are asking, and those posted on the MurthyForum and the MurthyChat, it is clear that there are some fundamental misunderstandings. Many articles about visa numbers, retrogression, and the Visa Bulletin are available on MurthyDotCom, which may be helpful in providing a better understanding. Reviewing some of these materials would be worthwhile to help one avoid unrealistic expectations that lead to increased frustration and disappointment. It is important to understand that the Visa Bulletin reflects the availability of a limited supply of immigrant visa numbers. It is a DOS publication. It is not related to the amount of time it takes the USCIS to review a case. It is not a problem of manpower or bureaucratic delays; it is a matter of limits on the number of cases that may be approved each year. This is set by federal law, passed by the U.S. Congress and signed by the President. It is not some failing of the USCIS in attending to their work in reviewing cases.
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The backward movement in EB2 India and China was expected. India used its full allocation of visa numbers in EB2 for FY2008 by February 2008. Any available numbers after that time were the result of the shifting of excess numbers from other countries. These numbers could only be shifted during FY2008, and the purpose was to avoid wasting them, as the numbers do not roll over from year to year. Thus, since October 2008 is the start of FY2009, we return to the regular, limited, per-category and per-country allocations. Presumably, the cutoff date is being set conservatively to avoid running out of numbers again before the end of the fiscal year. The Visa Bulletin indicated that the dates are unlikely to move significantly forward until the extent of the backlog at USCIS for cases with older priority dates can be assessed. It is our understanding that this information is not readily available, since the USCIS reviews cases based upon the I-485 Application for Adjustment of Status filing date, rather than re-sorting them for regular review based upon an individual's priority date that has become current. Thus, the USCIS knows the volumes of cases pending, but it does not know the volumes of cases by priority date.
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Conclusion
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The Visa Bulletin, yet again, reflects that there are simply not enough immigrant visa numbers to meet the demands of U.S. employers for permanent foreign workers. This returns many people to another round of waiting for an allocation of the limited and highly sought after immigrant visa numbers. We at the Murthy Law Firm will continue to share information on Visa Bulletin matters with our readers and explain them in layperson's terms. The most recent Visa Bulletin chart is always available on MurthyDotCom at http://www.murthy.com/visadate.html.