Articles Posted in Visa Bulletin Priority Dates

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Secretary of Homeland Security Jeh Johnson

On October 28, 2015 sixteen Democrats from the House of Representatives including —Zoe Lofgren, Michael M. Honda, Judy Chu, Katherine M. Clark, Elijah E. Cummings, Anna G. Eshoo, Tulsi Gabbard, Luis V. Gutierrez, James A. Himes, Ruben Hinojosa, Eddie B. Johnson, James P. McGovern, Frank Pallone Jr., Jared Polis, David E. Price, and Alma S. Adams — issued a letter addressed to the Secretary of Homeland Security, Jeh Johnson concerning drastic revisions made to the Visa Bulletin on September 25, 2015.

In the letter, House Democrats argue that the revisions to the Visa Bulletin have compromised the integrity of the immigrant visa process, and resulted in a lose of faith in our immigration system. More over they argue that these revisions have adversely impacted the lives of thousands of immigrants, the American businesses who employ highly skilled workers, and our economy which benefits from retaining highly skilled workers.

As previously reported, the Department of State had published a dual chart system on September 9, 2015 with the addition of a new ‘date of filing chart’ which first appeared on the October Visa Bulletin. This new ‘date of filing’ chart was implemented in an effort to modernize and streamline the immigration process, as part of President Obama’s executive actions on immigration reform.

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Photograph taken at Ellis Island

Further changes have been made to the November Visa Bulletin published earlier this month by the Department of State. The dual chart system remains in place including the ‘final action date’ chart and ‘date of filing’ chart. So what has changed? USCIS has become more involved in the application process for family-sponsored and employment-based immigrant applications since the introduction of the date of filing chart. A disclaimer has now been added to the November Visa Bulletin above the date of filing chart which instructs applicants to visit the USCIS website for more instructions on how and when the chart is to be used. USCIS has created this new web page to notify applicants whether they can proceed with applications for permanent residence based on the date of filing chart published monthly on the Visa Bulletin. The website will be updated within about a week of the publication of the Visa Bulletin every month. The webpage is intended to provide applicants information in regards to visa availability for family-sponsored and employment-based immigrant visas for each fiscal year, letting applicants know whether the filing date chart is enforceable. So far, USCIS has indicated that the filing date chart for October and November 2015 is enforceable.

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As some of you may have heard, on September 25th the US Department of State made some additional changes to the October 2015 Visa Bulletin. These changes include new and earlier date of filing cut-offs than those initially released on September 9th. The date of filing chart released on September 25th will replace the prior one released on September 9th. To view the complete changes please click here. These new changes have raised several concerns for our readers.

What caused the visa numbers to be re-issued after their release on September 9, 2015?

Though we cannot ascertain the exact reasons why these changes have come about, we can make the fair assumption that these changes were likely due to workload concerns and a lack of resources necessary to accommodate the large amount of adjustment of status applications expected to be filed beginning October 1st. The anticipated workload may have given the Department of State no choice but to retrogress the visa numbers in heavily used categories.

Is the Department of State reneging on their promise to modernize and streamline the immigration process as part of Obama’s executive actions on immigration?

While it is disappointing that the visa numbers on the ‘date of filing’ chart have retrogressed, a departure from the promised executive actions does not seem to be the case. The visa numbers have been adjusted in an effort to streamline the immigration process in a way that is viable, practical, and effective. Dates of filing have been adjusted for family-sponsored and employment-based preferences to create a practical timeline that provide CIS the sufficient time needed to process the large volume of anticipated adjustment of status applications.

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In order to apply for permanent residence, a relative or American employer must file an immigrant petition on your behalf. Family-sponsored and employment-based petitions are subject to visa limitations unlike petitions filed by immediate relatives who are US citizens. Immediate relative petitions remain unlimited and are always available. This means that if your petitioner is your immediate relative and a US Citizen you can file your I-485 at the same time as your immigrant petition.

In order to understand whether a visa is available to you and whether you can proceed with filing your application for permanent residence, you will need to keep a close eye on the Department of State’s Visa Bulletin. 

Family Sponsored Preference Categories are as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

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Great news for Indian Nationals! The United States Department of State Bureau of Consular Affairs recently released the August Visa Bulletin which summarizes the availability of immigrant visas for the month of August for family-based and employment-based visa preferences. According to Section 201 of the Immigration and Nationality Act (INA) the allotted number of employment based visas is set to at least 140,000 visas for the worldwide level. The Visa Bulletin for August indicates that the second preference EB-2 employment-based category for India has advanced by 5 years when compared to the Visa Bulletin in the recent year. The advancement of the employment based second preference EB-2 category provides Indian nationals whose Form I-140 Immigrant Petition for Alien Worker was approved and whose priority dates fall before January 22nd of 2009, with the opportunity to apply for their green cards beginning August 2014. For priority dates related to family sponsored preferences and diversity immigrant categories please click here to read the August Visa Bulletin. For legal questions please contact our office and we would be happy to help.

Employment Based

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The Chief of the Visa Control and Reporting Division at the U.S. Department of State, Charles Oppenheim, recently shared the expected projections for monthly and annual visa demand and Visa Bulletin projections regarding family and employment based green cards. It is important to note that these projections may be subject to change based on the reported or observed visa demand witnessed by USCIS and the U.S. Department of State.

Important developments to look forward to this year include significant advancement of EB-2 category for India and unmarried sons and daughters of LPR over 21 years old. On the other hand, several immigrant visa categories are expected to retrogress due to high demand, such as the category of spouses and children of LPR, EB-5 for Chinese nationals and EB-3 for Chinese nationals. The expected projections are as follows:

Family Based Second Preference 2A Worldwide (FB-2A) –Spouses and Children (under 21) of Permanent Residents:

So the Visa Bulletin was released yesterday. FB-2A is now listed at September 2013 and EB-2 China advanced to September 15, 2008. EB-2 India remained at June 15, 2008.

Overall the movement is very Slow, we recommend Green Card holders that are eligible to file for their Spouse and Children under 21, to do so before the End of September. Read more about the reason in this article we released last month.

Why is there as limit on Visa Numbers?

As we reported before, if you are a Permanent Resident (Green Card holder), and your spouse is currently legal in the United States, as of August 1, 2013 you could file for Adjustment of Status (I-485 Benefits). That will include an application for a Green Card, Work Authorization, as well as a travel permit. The work card will be issued in 60-90 days in most jurisdictions. The Visa Bulletin for September was released and is still current.

On the employment side, EB3 for China, Mexico, and all chargeability areas except those listed jumps forward by a year-and-a-half to July 1, 2010. It is unclear what will happen in the next few months but we can not predict it will last. The same may happen in the Family categories as visas may retrogress again.

So if you are a Green Card holder, file fast for your spouse and children under 21.

Our Blog readers often inquire regarding visa wait times and priority dates. This article will answer the top three frequent asked questions by previous clients, which are “What is the visa waiting list?”, “Why there is a preference category?” and “What is the current cut-off date for my visa category in my country?”

I. What is the visa waiting list?

The visa waiting list refers to those cases where the petition from the U.S. sponsor has been approved, but they still cannot proceed with processing because of statutory limits on the total number of visas and the per-country limits. According to the U.S. Department of State, the annual family sponsored preference categories are limited to 226,000 (Note: this excludes spouses, parents, and minor children of U.S. Citizens, who are the highest priority for immigration and are exempt from immigration caps). It is required by the Immigration and Naturalization Act that family sponsored visas be granted in the order that the eligible potential immigrants applied.

This is a recent update. The State Department announced that the annual limit in the EB-2 category for China-mainland born and India has been reached. The State Department notified USCIS on April 11, 2012, that no further visas for those categories would be authorized. This is the “additional corrective action” that was forecast as a possibility in Section D of the May 2012 Visa Bulletin.

USCIS will continue to accept adjustment applications based upon cut-off dates published in the April and May Visa Bulletins. However, requests from USCIS service centers and field offices for visas in the EB-2 category aliens chargeable to China-mainland born or India will be retained by DOS for authorization in FY2013, beginning on October 1, 2012.

Visa applicants processing in April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established. USCIS will continue to accept applications for adjustment of status for aliens with priority dates prior to the date established in the April 2012 Visa Bulletin. Those cases with priority dates of August 15, 2007, or later, will be processed by USCIS to the point of approval (pre-adjudicated) and a request for a visa number will be forwarded Visa Control at DOS to be held in a “pending” file until new visas are available beginning with FY2013 on October 1, 2012 as we explained above.