By Beth E. Carlson and Declan P. Mumford
As expected, the U.S. Department of State’s (DOS) December 2013 Visa Bulletin revealed that the EB-2 category for foreign nationals from India holding advanced degrees and pursuing the permanent residence process in the U.S. has backlogged or retrogressed to Nov. 15, 2004. The cutoff date for this category in the November 2013 Visa Bulletin was June 15, 2008.
Unfortunately, this date has now moved backwards or retrogressed over 3.5 years.
December 2013 Visa Bulletin
The DOS publishes this monthly report which outlines the visa availability for individuals seeking permanent resident status in the U.S. The Visa Bulletin is used as a guide for the issuance of immigrant visas at U.S. consulates overseas and to determine whether an Application to Register Permanent Residence or Adjust Status (green card application) may be accepted or adjudicated by the U.S. Citizenship and Immigration Services (USCIS).
For employment-based (EB) permanent residence cases, the dates published in the Visa Bulletin refer to the priority or “cutoff” date assigned to foreign nationals as they begin the permanent residence process. For EB immigrant petitions, the priority date is determined by the earlier of either the date an Immigrant Visa Petition (Form I-140) was filed with USCIS or the date a Labor Certification Application (PERM) was filed with the U.S. Department of Labor. Once this date becomes current, the beneficiary is then eligible to file a green card application with USCIS or an immigrant visa petition with a consulate or embassy abroad.
Generally speaking, the December 2013 Visa Bulletin indicates little or no positive movement across many of the employment-based categories:
- Worldwide EB-3 advanced one year to Oct. 1, 2011.
- China EB-2 advanced one month to Nov. 8, 2008.
- China EB-3 advanced one year to Oct. 1, 2011.
Visa Retrogression for India
Unfortunately, the most significant and unwanted movement in the December Visa Bulletin is for the Second-Preference Employment-Based category (EB-2) for individuals born in India. The cutoff date for this category in the November 2013 Visa Bulletin was June 15, 2008. This date has now retrogressed over 3.5 years to Nov. 15, 2004.
Recent reports from the government have indicated that retrogression in the EB-2 India category is due in large part to significant numbers of Indian foreign nationals taking advantage of immigration regulations which allow individuals to use established priority dates in the EB-3 category as their priority date for subsequently filed immigrant visa petitions in the EB-2 category. This situation can occur when an employer sponsors a foreign national for permanent residence in the EB-2 visa category, and that individual is already the beneficiary of an immigrant visa petition filed on their behalf in the EB-3 category. In such a scenario, the foreign national is eligible to retain the priority date associated with the EB-3 petition, while moving ahead in the permanent residence process in the EB-2 category, and in doing so keeping their previously established place in the immigration queue.
Because visa backlogs in the EB-2 category have historically been shorter than those for EB-3, this has often proved to be a substantial benefit to those who were eligible to take advantage of the regulation. For example, the EB-2 India cutoff date according to the November 2013 bulletin was nearly five years shorter than that of the EB-3 India category. The large numbers of individuals seeking to “upgrade” their priority date in this way have placed a strain on the availability of visas in this category and the resulting EB-2 India backlog is now only 14 months shorter than that for the EB-3 category. The EB-3 India category also retrogressed for December 2013 by 3 weeks to Sept. 1, 2003.
Guidance from DOS Regarding Future Visa Availability for FY2014
In addition to the numbers published in the December 2013 bulletin, Charlie Oppenheim of the State Department’s Visa Office recently provided some information with respect to future visa availability for FY2014 (Oct. 1, 2013-Sept. 30, 2014):
- Worldwide EB-1 is expected to remain current.
- India EB-2 will continue to present a challenge as DOS tries to manage higher numbers of upgraded cases.
- India EB-3 will continue to move very slowly.
- China EB-2 will continue to move slowly.
- China EB-3 is expected to continue to be ahead of China’s EB-2 priority date.
It is important to keep in mind that these are just some early indications and statements from the DOS are always subject to change based on visa usage and other factors as the year progresses.
Despite the limited positive movement in the visa backlogs shown in the December 2013 Visa Bulletin, permanent residence continues to be a waiting game for many nationalities. The large number of individuals seeking permanent residence through employment-based cases continues to increase, further straining a system already struggling to handle the demand for immigrant visas which leads to permanent residence. The fact remains that until Congress is able to pass meaningful comprehensive immigration reform, or piecemeal legislation to assist highly skilled workers, significant visa backlogs will continue to exist and the priority dates for the employment-based categories will ebb and flow, perpetuating uncertainty for those individuals, especially those from India, seeking permanent residence in the U.S.
Beth E. Carlson is counsel and Declan P. Mumford is a paralegal in the Minneapolis office of Faegre Baker Daniels.
© Copyright 2013 Faegre Baker Daniels LLP. All rights reserved.
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