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November Visa Bulletin Analysis Essay

The U.S. State Department has just released the February Visa Bulletin which is the fifth Visa Bulletin for the FY fiscal year. The headline in the upcoming month’s Visa Bulletin is the continued anemic forward movement in EB-2/3 India.   EB-3 China advances significantly by 5 months and continues to have a more favorable cutoff date than EB-2 China and this creates good conditions for EB-2 to EB-3 China downgrades.   Also, we provide predictions for the anticipated cutoff date movement over the next months.

Summary of the February Visa Bulletin – Employment-Based (EB)

EB CategoryFeb Jan Change
Employment Application Final Action Dates (determines when an I or IV can be approved)
EB-1 ROW, MX, PHCurrentCurrentNo change
EB-1 IndiaCurrentCurrentNo change
EB-1 ChinaCurrentCurrentNo change
EB-2 ROW, MX, PHCurrentCurrentNo change
EB-2 IndiaDec 8, Nov 22, Forward by 2 weeks
EB-2 ChinaOct 1, Aug 8, Forward by 7 weeks
EB-3 ROWCurrentCurrentNo change
EB-3 IndiaDec 1, Nov 1, Forward by 1 month
EB-3 ChinaSep 15, Apr 14, Forward by 5 months
EB-3 MexicoCurrentCurrentNo change
EB-3 PhilippinesMar 1, Feb 15, Forward by 2 weeks
Dates for Filing Employment Visa Applications (determines when an I can be filed)
USCIS will determine and announce within a week &#; please check USCIS&#;s site.
EB-1CurrentCurrentNo change
EB-2 ROW, MX, PHCurrentCurrentNo change
EB-2 IndiaFeb 8, Feb 8, No change
EB-2 ChinaNov 15, Nov 15, Forward by 1 year
EB-3 ROWCurrentCurrentNo change
EB-3 IndiaJan 1, Jan 1, No change
EB-3 ChinaJan 1, Sep 1, Forward by 3 months
EB-3 MexicoCurrentCurrentNo change
EB-3 PhilippinesAug 1, Aug 1, No change

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I filings on the basis of these filing dates. Please see the section below.

Summary of the February Visa Bulletin – Family-Based (FB)

FB CategoryFeb Jan Change
Family Application Final Action Dates (determines when an I or IV can be approved)
FB-1 ROW, China, IndiaMar 15, Mar 15, No change
FB-1 MexicoJul 1, May 1, Forward by 2 months
FB-1 PhilippinesAug 1, Jan 1, Forward by 7 months
FB-2A ROW, China, India, PhilippinesMar 1, Feb 1, Forward by 1 month
FB-2A MexicoFeb 1, Jan 1, Forward by 1 month
Dates for Filing Family Visa Applications (determines when an I can be filed)
USCIS will determine and announce within a week &#; please check USCIS&#;s site.
FB-1 ROW, China, IndiaJan 1, Jan 1, No change
FB-1 MexicoNov 1, Nov 1, No change
FB-1 PhilippinesOct 1, Oct 1, No change
FB-2A ROW, China, India, PhilippinesNov 1, Nov 1, No change
FB-2A MexicoNov 1, Nov 1, No change

Please note that USCIS will determine and publish, about a week after this Visa Bulletin is published, whether or not to accept I filings on the basis of these filing dates.

Final Action Dates for EB-3 China Ahead of EB-2 China – Continuing Favorable Conditions for Downgrading

Clients and readers who are interested in EB China will note that EB-3 China has (again) a more favorable cutoff date than EB-2 China by about 11 months (EB-3 China is at September 15, while EB-2 China is at October 1, ).

Here’s how this can work:  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    It is possible to use a PERM which has already expired if it has been used in support of a previous I and in many cases it is even possible to file a new EB-3 I filing under premium processing.   As a result, if the premium processing request is accepted, it may be possible to obtain an approved downgraded and current EB-3 I within a few weeks, and then promptly seek to file I adjustment of status which provides additional benefits such as independent work authorization (for family members too) plus AC21 job portability after days.

We caution our clients and readers, especially the China employment-based applicants, that the historic average time for an EB-3 China priority date to become current and for a green card under this category to be approved is still higher than the historic average wait time under EB   As a result, even if it is possible that an EB-3 “downgrade” may allow the I filing, we still believe that ultimately, an EB-2 China application may still take slightly less time to approve.   However, for many applicants, the benefit of early I filing may be worth it to go through the EB-3 &#;downgrade&#; process.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

Visa Bulletin Predictions – Employment-Based

The February Visa Bulletin provides some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1 All.   Expected to remain current for the next several months.

EB-2 Rest of World (ROW).  Expected to remain current.

EB-2 India.  Expected to advance by up to two weeks per month.

EB-2 China. Expected to advance by up to several months per month.

EB-3 Rest of World (ROW).  Expected to remain current.

EB-3 India.  Expected to advance by months per month.

EB-3 China.  Expected to advance by up to 5 months per month.

EB-3 Mexico.  Expected to match the EB-3 ROW level (stay current).

EB-3 Philippines.  Advance by up to one month per month.

Current Date?

Our office stands ready to assist in the applicable process to take advantage of the significant restructuring in the way the cutoff dates are determined and published.  There are many applicants across many of the employment and family categories who can now process their (and their family members’) I Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I applications. We are also happy to provide a free quote for preparing and filing your I application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the February Visa Bulletin. Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

As one of the senior attorneys and the founding member of the Capitol Immigration Law Group, Mr. Michailov is at the forefront of the immigration law community. He represents individuals from more than 50 countries in their quest for U.S. immigration options and solutions. He also represents companies and organizations ranging from small entrepreneurs to multinational corporations in meeting their goals to recruit, hire and retain talented foreign nationals while maintaining full compliance with the relevant immigration rules and procedures.


Executive Summary

In November, USCIS will only accept employment-based adjustment applications from foreign nationals with a priority date that is current for final action under the State Department's November Visa Bulletin.

USCIS has determined that, next month, it will only accept employment-based adjustment of status applications from foreign nationals with a priority date that is current for final action under the State Department’s November Visa Bulletin.


Employment-Based Priority Date Cut-offs for November

To be eligible to file an employment-based adjustment application in November, employer-sponsored foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country.

FINAL ACTION CUT-OFF DATES FOR NOVEMBER

EB-1 
Current for all countries

EB-2 
China: June 15,
India: October 8,
All other countries: Current

EB-3 Professionals and Skilled Workers 
China: February 1,  
India: October 15,
Philippines: January 15,
All other countries: Current

EB-3 Other Workers 
China: April 1,
India: October 15,
Philippines: January 15,
All other countries: Current

EB-4
El Salvador, Guatemala, Honduras: November 1,  
Mexico: April 1,
All other countries: Current

EB-5 
China: July 1,
Current for all other countries and subcategories

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.