The Department of State’s (“DOS”) Visa Bulletin for February was recently published and continues to show intriguing priority date developments, including some progression for nationals of China in the second and third employment-based (EB-2 and EB-3) categories, and no movement whatsoever for nationals of India in all employment-based categories. As previously reported, priority dates for nationals of China in the EB-3 category are much more advanced than priority dates in the EB-2 category which is very unusual because the EB-3 category has historically always taken several years longer than the EB-2 category to become current. Specifically, Chinese nationals with EB-3 priority dates of June 1, 2012 or earlier can now process the final stages of their permanent residence applications; whereas Chinese nationals with cases in the EB-2 category must have priority dates of January 8, 2009 or earlier. The EB-3 category continued to move forward, albeit incrementally, for nationals of all countries, except India: Mexico moved from April 1, 2012 to June 1, 2012; the Philippines moved from February 15, 2007 to April 15, 2007; and for nationals of all other countries from April 1, 2012 to June 1, 2012. Regrettably, priority dates for Indian nationals remain stagnant for the foreseeable future.

In response to these developments, employers may want to consider the following:

  • Assessing whether an affected employee, particularly Indian nationals, qualify for permanent residence under the EB-1 category which remains current for nationals of all countries. Nationals who have a proven track record of success and achievement in a particular field of endeavor, such as research and development, science, engineering, and/or business may be eligible for an EB-1 filing.
  • Reviewing the priority dates of Chinese nationals with pending EB-2 cases to determine whether it makes sense to file an amended Immigrant Petition under the EB-3 category now that priority dates in the EB-3 category have more favorable priority dates than the EB-2 category.
  • Analyzing with outside counsel whether new cases for Chinese nationals should be prepared and filed under the EB-3 category rather than the EB-2 category.
  • Running priority date reports for all foreign nationals with pending permanent residence cases to see if there are pending matters which are now current and eligible for the final stage of the permanent residence process. When priority dates become current, it is important to act quickly and file the necessary paperwork with authorities for the final stage of the process. Failure to do so could lead to a missed opportunity and adversely affect a foreign national, particularly considering that priority dates move forward some months and regress other months.
  • Ensuring that any proposed job changes are reviewed carefully by outside counsel to determine whether a foreign national's immigration status is impacted. The lengthy wait times associated with obtaining permanent residence often create challenges to foreign nationals’ immigration statuses because promotions and changes in job responsibilities occur, which in turn may require amended H-1B petitions and new PERM Labor Certification Applications to be filed. Failure to do so can pose difficult compliance situations for companies and further immigration delays for foreign nationals.