• Significant Retrogression of EB-2 India/China Priority Dates Expected as Early As May
  • March 21, 2012
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • EB-2 priority date cut-offs for India and China are expected to retrogress to August 2007 as early as May or June, according to Charles Oppenheim, the State Department official responsible for the monthly Visa Bulletin. Exact cut-off dates are not yet known and will not be revealed until at least early April, when the State Department will issue the Visa Bulletin for May. Cut-off dates could retrogress even more than projected.

    The main reason for the retrogression is that USCIS has been processing greater numbers of pending adjustment applications and has requested more EB-2 immigrant visa numbers as a result. Higher demand for visa numbers in the EB-1 extraordinary ability category is also a factor. Under immigrant visa rules, unused EB-1 numbers “spill down” and are added to the EB-2 quota. But with more EB-1 adjustments being filed, a surplus is unlikely.

    Until recently, there had been significant priority date advancement for EB-2 India/China, but movement stalled in the last two Visa Bulletins as demand for the category increased. The priority date cut-off is presently May 1, 2010, where it will remain next month.

    The State Department’s projections do not affect availability of EB-3 numbers or EB-2 availability for countries other than China and India.

    What Foreign Nationals Should Do Now

    Eligible EB-2s who were born in India or mainland China and have a current priority date need to have an adjustment of status or immigrant visa application filed and received by the government by April 30, 2012. Once retrogression occurs, a foreign national whose priority date is later than the cut-off date specified in the Visa Bulletin will be unable to file until an immigrant visa number once again becomes available.

    Those with a newly-acquired foreign spouse, a foreign spouse living abroad and/or children under the age of 21 also need to take steps to ensure that their family members remain eligible for permanent residence as derivative beneficiaries.