Projected Retrogression for EB2 India and China by May/Jun 2012

As visitors to MurthyDotCom learned late last week, the U.S. Department of State (DOS) has advised that the employment-based, second preference (EB2) category likely will retrogress by May or June 2012. As explained in our NewsFlash, DOS Issues EB2 Cutoff Projections, the DOS projects that the cutoff date will move backward, or retrogress, to approximately August 2007. The impact of this development is explained here for the benefit of MurthyDotCom and MurthyBulletin readers.

After Months of Forward Movement

The DOS has been rapidly advancing the EB2 cutoff date for India and China since the start of fiscal year 2012 (FY12), which began October 2011. The purpose of this forward movement, as explained in several NewsBriefs over the past five months, is to allow for usage of immigrant visa numbers by the end of FY12.

As a result of the cutoff date movement, many individuals have been able to file their applications for adjustment of status to permanent residence (Form I-485). Others have been able to move forward with the processing of immigrant visas at U.S. consulates abroad. Each approval of an immigrant visa abroad, as well as each I-485 approval within the United States, uses an immigrant visa number. The goal of the DOS was to allow for sufficient cases to move forward and use all the available visa numbers by the end of FY12 (by September 30, 2012).

As expected, the forward movement of the EB2 cutoff date resulted in a large volume of I-485 filings. The USCIS has done a remarkable job of processing these cases quickly. In addition to approving many of long-pending EB2 I-485s, most of which were filed in the summer of 2007, the USCIS has approved a large number of the more recently filed cases. Many have been processed in approximately 80 to 120 days, and sometimes even faster. Thus, visa numbers are being utilized at a high rate in the EB2 category.

Retrogression Expected by May or June 2012

From the beginning of this period of rapid EB2 cutoff date advancement, it was understood that the phenomenon was temporary. It could only continue as long as there was a need to generate demand for visa numbers. Once that demand materialized, the cutoff date movement would have to end, and retrogression was likely.

What we now know is that the retrogression will most likely happen in May or June 2012, and it will be dramatic. Just how long it will last, or how far forward the date will move once it ends remains unknown. Retrogression is, of course, quite disappointing to those hoping the cutoff date would advance further.

Strategies: Cases Still Can be Filed and Approved

Retrogression is not expected before May or June 2012. The EB2 India and China cutoff date of May 1, 2010 remains valid through the months of March and April 2012, as indicated in those visa bulletins. This means that individuals with EB2 priority dates prior to May 1, 2010 still have the opportunity to file I-485 cases anytime before the end of April 2012. While they will have to wait for an unknown period of time to be eligible for approval, they will be able to request Employment Authorization Documents (EADs) and Advance Parole (AP). EAD and AP are among the advantages of an I-485 filing.

Some of those who have filed EB2 I-485s still have the possibility of approval. As of this writing, we at the Murthy Law Firm continue to receive approval notices for such cases. The retrogression announcement indicates that EB2 visa numbers are running low, but they are not yet depleted. It is important in this type of time-sensitive situation to respond quickly to any requests for evidence (RFEs), as well as to fingerprinting notices.

Possible Options for Consideration upon Date Retrogression

While no one wants her/his case to be delayed, in some situations, there can be benefits to this. Most importantly, retrogression likely makes portability under the American Competitiveness in the 21st Century Act (AC21) possible for some individuals. AC21 provides job flexibility in those cases where the I-485 remains pending for 180 days or more. Most people who have filed I-485s recently did not become eligible for AC21, as their cases simply did not remain pending for the minimum required, 180-day period. This ultimately may be a benefit, allowing applicants to accept promotions with the sponsoring employer, or to move to a new position or new employer, meeting the AC21 “same or similar job classification” requirements. It can be an enormous benefit to those who unexpectedly lose their jobs after the I-485 filing. Many NewsBreifs on MurthyDotCom discuss the AC21 requirements in detail.

For some, retrogression will provide some additional time to get married before the green card approval. If one is not yet married, and has plans to eventually bring a spouse to the U.S. from abroad, green card timing is very important. If one plans to bring a spouse to the U.S. on H-4 or L-2 or another dependent nonimmigrant status, it is vital to marry before the green card is approved. Marriage after the green card approval, and before one is eligible to naturalize can delay the spouses ability to come to the U.S. for many years.

Expected Forward Movement of Priority Dates

As explained above, FY12 ends September 30, 2012. On October 1, 2012, therefore, a new allocation of visa numbers will become available for FY13. This does not mean that the cutoff date in October 2012 will return to its current date of May 1, 2010. It simply means that new visa numbers will be available, and the DOS will establish a date based upon demand at that time. There may be a clearer idea of this demand once the USCIS updates the pending I-485 inventory charts.

The cutoff date is always based on estimates of supply and demand. Uncertainty in this process is underscored by the fact that, at this time, the DOS is unsure whether retrogression will occur in May or June 2012. Sometimes, even after a retrogression period, the DOS has some remaining visa numbers toward the end of the fiscal year. In that case, a new cutoff date is established for a short duration, typically at the very end of the fiscal year.

Conclusion: File the I-485 if Appropriate

Given the many variables that determine visa bulletin cutoff dates, MurthyDotCom and the MurthyBulletin will continue to provide updates on this important topic. This retrogression was expected and, yet again, underscores the importance of taking advantage of opportunities to obtain immigration benefits when they arise. It is fairly common for limited windows of opportunity to appear, which can close again soon after. Sometimes chances are missed for reasons that are uncontrollable, such as job changes or loss. But, as we always recommend, it is vital to try to position oneself to be able to take advantage of opportunities when they present themselves. If this particular I-485 filing opportunity is missed, one may wish to consider paths to eligibility for filing the next time the dates advance. Attorneys at the Murthy Law Firm are available to consult on this as well as other situations, created by retrogression of EB2 cutoff dates.

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