Cutoff Date Expectations and Explanations: EB2 Retrogression

The U.S. Department of State (DOS) has provided detailed predictions and explanations regarding the movement of priority dates in fiscal year 2013 (FY13), which occurs from October 1, 2012 through September 30, 2013. The employment-based, second preference (EB2) category for India and China faces protracted retrogression. While the EB2 category will no longer be unavailable as of the start of FY13, on October 1, 2012, the projected cutoff date for EB2 India and China will likely be August or September 2007. This summary and analysis of the DOS’s reasons behind this phenomenon provides related predictions of priority date movement in FY13.

Background: PD Movement in Late 2011 / Early 2012, Followed by Unavailability

The current developments and predictions for DOS visa bulletin priority date (PD) movement in 2013 are tied to the rapid advancement of EB2 cutoff dates during the late 2011 and early 2012 calendar years. This rapid movement generated an extremely high volume of adjustment-of-status (form I-485) filings and a depletion of visa numbers in fiscal year 2012 (FY12). Many of the I-485 cases filed prior to the depletion of FY12 visa numbers remain pending, as the visa numbers ran out before the cases could be adjudicated.

The quantity of pending I-485 cases is discussed in our June 8, 2012 MurthyDotCom NewsBrief, Updated I-485 Inventory: May 2012. The inventory charts examined in that article provide a very clear illustration of the pent-up demand for visa numbers which, in turn, determine the cutoff dates that will be set in the October 2012 Visa Bulletin. This unmet demand will also determine the cutoff dates for Visa Bulletins throughout FY13.

EB2 India and China Predictions

The Chief of the DOS, Immigrant Visa Control and Reporting Division, Charles Oppenheim, predicts that, in October 2012, the cutoff dates in EB2 for India and China will be sometime in August or September 2007. He indicates that China could have an EB2 cutoff date slightly ahead of India. Further, in a prediction that is likely to disappoint many EB2 India and China applicants, Mr. Oppenheim does not expect to be able to advance the EB2 cutoff dates established in October 2012 during the first two quarters of FY13. It is unlikely, therefore, that there will be forward movement of the EB2 India and China dates for the first six months of FY13.

EB2 Worldwide (Other than China / India): Current as of October 2012

Unlike India and China, the EB2 cutoff date for all other countries of chargeability will be current, according to Mr. Oppenheim. The EB2 cutoff date for all countries other than India and China, historically, has been current. In a development related to the excessive usage of EB2 visa numbers during FY12, an EB2 cutoff date for countries other than India and China had to be established in the July 2012 Visa Bulletin. This highly unusual situation was discussed in our MurthyDotCom NewsBrief, July 2012 Visa Bulletin: Cutoff Date for EB2 Worldwide, Mexico & Philippines (17.Jun.2012). It is possible that this category may become completely unavailable later in FY12; it is expected, however, that the start of FY13 will see this category returning to its usual current available status.

Approximately 17,000 Pre-Adjudicated I-485 Cases

The U.S. Citizenship and Immigration Services (USCIS) continues to process filed I-485 cases even when priority dates are not available. These cases are reviewed, pre-adjudicated, and simply await visa number availability prior to the final I-485 approval. The USCIS requests visa numbers for these cases from the DOS. The DOS system holds these requests, awaiting allocations of more immigrant visa numbers.

The DOS reports that, as of the end of June 2012, requests have been made for visa numbers to accommodate 17,000 pre-adjudicated I-485 cases in the EB2 category. These are cases for individuals from India and China, as well persons from other countries who have priority dates after the January 1, 2009 cutoff date established in the July 2012 Visa Bulletin. This leaves a great many cases ready for I-485 approval as of October 1, 2012, representing the pent-up demand for EB immigrant visa numbers, which must decline before the cutoff dates for EB2 India and China can advance.

USCIS Urged DOS to Advance Priority Dates Due to Insufficient I-485 Filings

Cutoff dates are based on calculations of demand for visa numbers. While the DOS sets the visa bulletin cutoff dates, information from the USCIS is relied upon. This was the case in this instance particularly, as the EB2 cutoff date had finally progressed enough to clear most of the pending cases that remained following the summer of 2007. The demand for visa numbers in EB2 would have to be generated almost exclusively through new I-485 filings.

The USCIS has the key data regarding eligibility for and the quantity of such filings. The DOS was urged by the USCIS to advance the Visa Bulletin cutoff dates for EB2 India and China. The USCIS indicated to DOS that an insufficient number of I-485 filings was being submitted, despite advancement of the EB2 cutoff date. The DOS responded by rapidly advancing the cutoff date in January, February, and March 2012.

Higher Demand for EB1 & EB5 Visas Results in Fewer EB2 Visa Numbers

Further complicating this matter was usage of EB1 and EB5 visa numbers that was higher than anticipated. Excess from these categories, when it exists, is made available to EB2. The USCIS underestimated demand for the EB1 and EB5, as well as other, related excess visa number availability for FY12.

USCIS Faster at Processing I-485 Cases

Finally, as discussed in other MurthyDotCom articles, the USCIS processed I-485 cases much more quickly than anticipated. With case approvals occurring in just a few months, in many instances, visa number usage and depletion occurred far earlier in the FY than had been projected.

EB3 to EB2 Filings for Upgrades Create Further Delays

Continuing to create difficulties for the DOS in their predictions of visa number demand are what are often referred to as EB3 to EB2 “upgrades.” [This strategy is discussed in our NewsBrief, Considerations for EB3 to EB2 “Upgrade” (04.Feb.2014).]

The DOS estimates that EB3 to EB2 filings by those hoping to upgrade their cases will account for usage of 10-15,000 visa numbers annually. Most of these are in the worldwide category. In FY12, India used 2,800 EB2 numbers via upgrade cases, and China utilized 500 visa numbers in this manner. The USCIS previously characterized the number of such cases as insignificant.

Conclusion

The erratic movement of the visa bulletin cutoff dates appears to be primarily the product of incorrect data leading to incorrect estimates. The result of this is a smaller scale repeat of the fiasco of the summer of 2007. As the situation stands, many of those who were able to file their I-485s in late 2011 and early 2012 likely will have to wait still longer for their cases to become eligible for approval. They will benefit from the ability to obtain employment authorization documents (EADs) and advance parole (AP) travel documents. They will become eligible for employment flexibility benefits under the green card portability benefits of the American Competitiveness in the 21st Century Act (AC21). Individuals with priority dates that fall after the projected cutoff date are likely to continue facing long waiting times before they will have the opportunity to move forward to the I-485 stage and a chance to obtain permanent residence. We at the Murthy Law Firm and MurthyDotCom will continue to provide our readers with helpful guidance and any further reliable predictions regarding visa bulletin cutoff dates.

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