Immigration Planning in 2012 (Part 1 of 2)

This series of articles examines some of the key immigration developments of 2011. We discuss how these developments could affect MurthyDotCom and MurthyBulletin readers in 2012 and make recommendations for strategic planning on the U.S. immigration law front in 2012. Our focus here is the forward movement of EB2 priority dates for nationals of India and China, and an analysis of the issues to help people plan and file their I-485s or obtain their immigrant visas from abroad.

Priority Date Progression in EB2 for India and China

There was extremely good news for many Indian and Chinese nationals in the second half of 2011, as the priority dates for the employment-based, second preference (EB2) green card category advanced rapidly. The cutoff dates in the December 2011 U.S. Department of State (DOS) Visa Bulletin moved forward by more than four months. This was followed by the January 2012 DOS Visa Bulletin EB2 India and China jump of almost ten additional months. The February 2012 Visa Bulletin shows the rapid forward movement in EB2 for India and China continues, with advancement of a full year.

The new cutoff date for both EB2 India and China is January 1, 2010 in February 2012. While the March 2012 DOS Visa Bulletin has not yet been released, the DOS projects that EB2 India and China will move by a few months in March 2012. This development means that many Indian and Chinese nationals and their families are now eligible to file the final stage in their “green card” applications. Along with this filing, they can receive the benefits that accompany an application of this type, such as unrestricted employment authorization and advance parole.

Advancement in prior months led to many long-awaited green card approvals for Indian and Chinese nationals in the EB2 category. Prior to this year’s forward movement, these dates were stalled with minimal movement for a long period of time. At the Murthy Law Firm, our Green Card Department has been busy filing I-485 applications for our many clients who, after a long wait, have finally reached this stage. Anyone who has seen her/his priority date become current should endeavor to file the I-485, if otherwise eligible to do so.

Planning for 2012: Priority Dates and I-485s

The rapid movement in EB2 for nationals of India and China is, of course, a welcome development for most. However, as explained in several articles available on MurthyDotCom, this rapid forward movement is a temporary phenomenon. Thus, it is unclear if the good news will continue for these applicants. For more details on the reasons for this advancement, see our October 28, 2011 NewsBrief, Visa Bulletin Predictions: Significant EB2 Movement, on MurthyDotCom.

Priority dates can move forward – as they have been – and they can move backward. This movement primarily is based on the number of green card filings with the U.S. Citizenship and Immigration Services (USCIS), to a lesser extent, filings with the DOS for consular processing. The cutoff dates are established by the DOS based on calculations of supply and demand. The DOS must balance the competing goals of ensuring that all immigrant visa numbers allocated for a particular fiscal year (FY) are utilized, while trying to avoid running out of visa numbers before the end of the FY.

Retrogression Possible

The cutoff date in the February 2012 Visa Bulletin was advanced in order to create a demand for visa numbers in upcoming months. Therefore, if the USCIS begins to receive more green card applications than expected, the DOS may find it necessary to move the cutoff dates backward – a procedure known as retrogression.

The DOS previously advised that retrogression may occur in summer of 2012. However, given the number of case filings generated by the cutoff date advancement, the DOS could need to revise their calculations. There are many factors that impact the demand for visa numbers and surprises can occur with each monthly visa bulletin.

In addition to the new I-485 filings, the use of the strategy known as EB3 to EB2 upgrading has created a demand for EB2 visa numbers that is difficult to predict. [For more information on this strategy, see our 04.Feb.2014 NewsBrief, Considerations for EB3 to EB2 “Upgrade,” also available on MurthyDotCom.]

If the priority dates retrogress, it will be important for people who are current to file during the months when their respective dates are current. Visa bulletins are always issued several weeks prior to their validity. (That is, the May Visa Bulletin is issued in early to mid April, and so forth for each month in the year.) Therefore, there should be some advance notice of any retrogression.

Conclusion: Take Advantage of Opportunity to File

Unless there is some reason not to do so, those with priority dates that are current, should file or prepare to file before the end of the particular months in which their dates are current. Otherwise, they may have to wait, yet again. More information on the matter of missing filing opportunities can be found in our December 2, 2011 NewsBrief, Priority Date Finally Current! How Soon Should I-485 be Filed?, on MurthyDotCom. Those who need advice or assistance with their I-485 filings are welcome to contact the Murthy Law Firm.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.