The U.S. Department of State’s (DOS) Visa Bulletin sets out per country priority date cut-offs that regulate when an individual can begin the final phase of the lawful permanent residence (“green card”) process, either through adjustment of status or consular immigrant visa application. Those with priority dates that are earlier than the date listed for that visa category and country can proceed with their applications. Since the EB-2 (Employment-Based, second preference) category is heavily used for citizens of India and China, it can take a substantial amount of time for the dates on the Visa Bulletin to move forward.
Consistent with DOS projections, the August 2013 Visa Bulletin indicates that the cut-off date for foreign nationals in the EB-2 category from India will advance to January 1, 2008. Prior to this significant forward movement, since October 2012, the EB-2 India priority cut-off date had remained stagnant at September 1, 2004. As a result of this movement, as of August 1, 2013, foreign nationals in the EB-2 India category with priority dates of January 1, 2008 or earlier may file an adjustment application or expect adjudication of a pending application.
Impact on Employers and Foreign Nationals
As a consequence of this substantial forward movement in the EB-2 India category, many additional individuals will be allowed to proceed to the final stage in the lengthy green card process. Employers and foreign nationals must keep in mind that, if there is a dramatic increase in demand in response to the advancement, particularly by Indian nationals upgrading to the EB-2 category from the EB-3 category, EB-2 cut-off date retrogression is a distinct possibility in fiscal year 2014, which begins on October 1, 2013. Consequently, the U.S. Citizenship and Immigration Services (USCIS) will be left with a very limited time period to adjudicate pending cases, and eligible EB-2 Indian nationals who do not have pending adjustment applications may only have a brief window to file an application if their priority dates become current as of August 1, 2013. With the advancement in the cut-off date, it is, as yet, unclear how many visa numbers will be available. Moreover, pending adjustment applications, including an indeterminate number of cases that have been upgraded from EB-3 to EB-2, will take priority over new applications.
Prior to the release of the August Visa Bulletin, Ogletree Deakins had already received several Requests for Evidence (RFEs) requiring adjustment applicants with pending cases to provide supplemental documentation to USCIS. These RFEs suggested that USCIS was preparing for the possibility that these applicants’ priority dates might be current later this year. The responses to these RFEs will assist the agency in finalizing and adjudicating these cases. The RFEs included requests for updated employment verification letters from the petitioning employer, proof of continuous employment authorization in the United States from the date the adjustment application was filed, and requests for updated biometrics.
Ogletree Deakins helps clients respond to cut-off date movement by generating priority date reports and notifying clients who are qualified to begin the final phase of their lawful permanent resident application process. We will work with employees, who have priority dates that will become current in August and/or September 2013, to ensure that their cases are ready to file and to keep their permanent residence process moving forward. For clients with applications placed on hold at USCIS due to a subsequent lack of visa numbers, an Ogletree Deakins Government Liaison Specialist can follow up with the government to ensure these cases are put back into the adjudication process.