Charlie Oppenheim, Chief of Visa Control at the US Department of State (“DOS”), stated that he will retrogress the priority dates for the second preference Employment-Based Category (EB-2) for those individuals born in India and Mainland China. The retrogression is slated to appear in the May or June of 2012 issue of the Visa Bulletin, and it will cause the priority dates for India and Mainland China EB-2 category to slide all the way back to August 2007. Based on this announcement, our law firm has made the following analysis.
How Does The Visa Retrogression Happen?
Congress allotted a specific number of immigrant visas to be issued every year for each preference category (both family and employment). In prior years, there was a huge surge in labor certificate applications which resulted in the filing of unprecedented green card (I-485) applications. This resulted in the creation of a backlog (think of it as a bubble) in the processing pipeline. Put simply, there were more applications filed than visa numbers available in the EB-2 and EB-3 categories. Because there were more applicants from India and Mainland China, those individuals were impacted the most by the advancement of the priority dates. Recent efforts by the USCIS resulted in efforts to significantly reduce the backlog. As the USCIS pushes cases through the pipeline, they cannot exceed the number of immigrant visas available by law.
My PERM Application Is Pending, How Will This Affect Me?
If your PERM application is pending, it is likely to be approved in the next 2 months. This means that if you are an Indian or Mainland China born, you are likely to be able to file your I-140 and I-485 concurrently before the end of June 2012. In doing so, you will be eligible to file for an alien Employment Authorization Card (EAD) and will most likely be eligible to take advantage of the portability provision down the road by changing employers and keep your permanent residence application so long you also qualify to port your I-485. Successful porting of your I-485 happens when: 1) your I-140 is approved; 2) 6 months passed since the filing of your I-485; and 3) you transfer to a company to work in the “same or similar occupational classification” which gave rise to your PERM application.
I Filed or Am About to File My I-485 Application, Will My Application Continue to Be Processed Despite The Retrogression?
Yes and No. Prior memoranda issued by the USCIS advises that if you have an I-485 pending but your priority date is not current, meaning your priority date is AFTER the date shown in the Visa Bulletin for your particular preference category, the USCIS will continue to process your I-485 in every way but will not approve your I-485 until your priority date becomes current. Again, your priority date becomes current if it is on or BEFORE the date shown on the Visa Bulletin for your particular preference category.
Mr. Oppenheimer also opined that all First Employment Based preference visas (EB-1) available in this federal fiscal year (2012) will most likely be used, which will result in no overflow of any available visas into the EB-2 categories.
Our law firm will continue to monitor the situation and will post an article about it when more information is available.