In the August 2016 Visa Bulletin, the U. S. Department of State (DOS) announced that due to continued high levels of demand, the agency has established cut-off dates for applicants for permanent residence under the employment-based first preference (EB-1) for India and China and for all applicants in the employment-based second preference (EB-2) category.
The EB-1 category is reserved for priority workers, including multinational executives and managers, outstanding researchers and individuals of extraordinary ability. The category has historically been current for applicants from all countries and, therefore, eligible individuals could file adjustment of status applications without being subject to a backlog. Due to unusually high demand under these categories, the agency established a January 1, 2010 cut-off date for EB-1 India and China in the August DOS Visa Bulletin.
The EB-2 category is reserved for positions requiring advanced degrees and individuals of “exceptional ability.” This category has traditionally been oversubscribed (and, therefore, subject to backlogs) for applicants born in India and China but has been current for applicants from all other countries. As a result of high demand for EB-2 from all countries, the agency established a cut-off date of February 1, 2014 for this category in the August DOS Visa Bulletin.
Click here to view the DOS Visa Bulletin for August 2016.
How long will these new retrogressions be in effect?
In the August DOS Visa Bulletin, DOS states that it anticipates that the dates for EB-1 for India and China and worldwide EB-2 will once again become current on October 1, at the start of the new fiscal year.
Can an applicant circumvent the retrogressions with the early filings dates in the August Visa Bulletin?
Unfortunately, although the DOS Visa Bulletin provides two separate charts of cut-off dates for adjustment of status applicants, a “final action date” and a “filing date chart1" applicants will only be able to use the “final action date” during the August and September retrogression. U.S. Citizenship and Immigration Services (USCIS) has determined that for August, applicants must use the final action date and cannot use the earlier dates provided in the filing date chart. Click here to view Sidley's Immigration Alert on the DOS announcement of the early filing dates.
What are the priority date backlogs?
Under immigration law, approximately 140,000 employment-based visa numbers are available each fiscal year in the five employment-based preference categories. The EB-1, EB-2 and EB-32 categories are each allocated 28.6 percent of the total. In addition to the limitations on each category, the law sets a per-country limitation at seven percent of the total and within each employment-based preference classification. Visa numbers are made available according to priority date order. When the immigrant visa demand exceeds the available number of visas within a preference category, the category becomes oversubscribed, or backlogged. Also, if the immigration visa demand exceeds the seven percent per-country limit within a particular preference category, the visa numbers for individuals born in that country become subject to a separate backlog.
What is the impact of the temporary retrogressions for EB-1 for China and India and EB-2 for all countries?
Adjustment applicants who are currently eligible to file but will be affected by the new retrogression in August must submit their adjustment of status applications before the end of July. For an adjustment of status application to be accepted under the current July DOS Visa Bulletin, the filing must be received by USCIS on or before Friday, July 29, 2016. Click here to view the DOS Visa Bulletin for July 2016.
Adjustment of status cases that are already pending with USCIS will be held in abeyance until after the new fiscal year begins on October 1, 2016. During the August and September retrogression, USCIS will not issue any final approvals for adjustment of status. Processing for interim benefits, such as advance parole and work authorization cards, will not be affected by the retrogression and will continue without interruption. When the EB-1 India and China and worldwide EB-2 numbers become current again in October, USCIS will resume processing of those cases that are pending in the system.
From the time of the announcement, Sidley’s immigration team has been working with employers to identify affected cases and to expedite the processing of adjustment of status cases to ensure that as many affected cases as possible can be filed before the new retrogressions take effect on August 1.