News Updates

Rumor vs. Fact regarding advancement of the India/ EB-2 category

The rumor mill is a-buzz with information that the priority dates for the EB-2 category for those green card processes chargeable to India are going to advance significantly or even become current.  While such information is understandably exciting for those who have been patiently waiting in a very lengthy green card process, it is important that individuals understand the true situation, the likely impact on the India/ EB-2 category, and what it may mean to their cases. 

Charlie Oppenheim is the Chief of the Immigrant Visa Control and Reporting Division for the U.S. Department of State.  He is responsible for establishing the cut-off dates for visa availability on a monthly basis, by comparing a complex calculation of the numbers allotted under the statute, and estimating prior, current and future usage of visas in each immigrant visa category.   Mr. Oppenheim recently provided the American Immigration Lawyers Association (AILA) with the following update:

Update on EB-2 Visa Availability

 “[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”    

                                                                                                                                                                  --  AILA InfoNet Doc. No. 11032960, posted Mar. 29, 2011

Some have dubbed the above “the great leap forward,” but in actuality it is likely to be more of a short jump forward.  Certainly any move forward in the priority dates is a move in the right direction, but we caution our clients and their employees not to incur legal expenses and the direct cost of expenses for medical exams and photographs in reliance upon the hope that they will be able to proceed right away with adjustment of status filings.

What does this really mean?

Currently, there are immigrant visas available in the EB-2 category, chargeable to India, for those with a priority date earlier than May 8, 2006. 

April 2011 Visa Bulletin:

As of the last USCIS posting on January 5, 2011, there were 44,475 cases in the EB-2 queue.  24,628 of those were India/ EB-2.  Of those, 14,710 are from 2006 and earlier.  Pre-2006 cases are likely held up for other reasons such as security checks or special issues.  However, if we consider cases filed in 2006 alone, there are 13,516 cases in the queue. 

Given the above, even if all 12,000 visas Mr. Oppenheim mentions are applied to the India EB-2 category, and taking into account that some cases may not be approved which would add a few numbers back, the priority date is unlikely to advance further than the end of calendar year 2006.

CAVEAT:  Please note that the above analysis is an estimation based on information currently available.  There are several variables in play; a change in any one factor can completely change the analysis.  For example, the numbers of cases in the queue as posted by USCIS may not be completely accurate; or Mr. Oppenheim may decide to delay the allocation of additional numbers, or change the recipient category of those numbers altogether.

I am an Indian national with an I-140 in the EB-2 category, and an I-485 Adjustment of Status filed with USCIS.  What should I do in light of the above information?

If you have already filed an adjustment of status and are waiting for the priority date to become current, there is no action item at this time.  USCIS may send an RFE (Request for Additional Evidence) just prior to adjudicating the adjustment to confirm that you remain employed in a qualifying position.  However, whether or when such an RFE will be issued is unknown, so there is nothing to prepare unless and until an RFE is issued. 

NOTES REGARDING MARRIAGE:

If you married after your I-485 was filed but have since married a foreign national who will also need permanent residence, when your priority date becomes current your spouse will be able to file an I-485 application as well, based on your I-140 priority date.

If you are not yet married and plan to marry an individual who would also need immigration to the United States, it is important that you marry before your I-485 is approved and you become a Lawful Permanent Resident of the U.S.  This is because if you marry before you obtain a green card, your spouse can immigrate with you as a derivative beneficiary on your employment-based case.  However, if you marry after you obtain a green card, your spouse would fall into the quota-backlogged category of “spouse of a lawful permanent resident.”  For Indian nationals, that category is backlogged to April 1, 2007.  In that event, your spouse would have to have an alternative means to remain in the U.S. (such as his or her own H-1B status) while waiting for the priority date to become current. 

Please note that the timing of marriage is a consideration for all nationalities in the green card process, not just Indian nationals.

I am an Indian national with an I-140 in the EB-2 category, and have not yet been able to file an I-485 due to the quota backlogs.  What should I do in light of the above information?

If you have a priority date in 2006 or early 2007, you can prepare for an I-485 filing by ensuring you have the appropriate civil documents which will be required for filing with the I-485.  For example: 

• Birth and marriage certificates:  Many birth records issued in India do not meet the criteria for filing with U.S. Immigration, requiring those individuals to provide affidavits as an alternative.   See http://www.travel.state.gov/visa/fees/fees_4881.html?cid=3582  (scroll down past the spreadsheet) for information regarding Indian birth certificates and marriage records.

• Divorce records:  If you are divorced, you must provide evidence of the prior marriage and divorce decrees.  See link above.

• Court records:  If you have ever been arrested for or convicted of a crime in any country, whether or not it has been expunged, it will be necessary to provide copies certified by the Court Clerk of documents indicating the charges filed, the sentence imposed (if any) and the final disposition of the case.  Proof of compliance with any terms of probation is also required.

For your protection, we recommend that you NOT incur the cost of photographs, medical exams, or legal fees for the preparation of a case before it is certain that your priority date is current.  Under current USCIS guidelines, medical exam results are valid for one year.  Therefore, if you complete the exam but are unable to file an I-485 within the year, the exam results will be void and you would have the inconvenience and additional expense of an another medical exam later.

The monthly State Department Visa Bulletin is generally posted in the middle of the month for the following month.  It is only when the Bulletin is posted and reflects that your priority date is current that it would be in your best interest to proceed with preparation of an adjustment filing.  (Although, those of you who remember the mess of the summer of 2007 know that even the Visa Bulletin can contain erroneous information.  However, it remains the most reliable source of information on priority dates and immigrant visa availability.)

NOTE REGARDING MARRIAGE (as above):  If you are not yet married and plan to marry an individual who would also need immigration to the United States, it is important that you marry before your I-485 is approved and you become a Lawful Permanent Resident of the U.S.  This is because if you marry before you obtain a green card, your spouse can immigrate with you as a derivative beneficiary on your employment-based case.  However, if you marry after you obtain a green card, your spouse would fall into the quota-backlogged category of “spouse of a lawful permanent resident.”  For Indian nationals, that category is backlogged to April 1, 2007.  In that event, your spouse would have to have an alternative means to remain in the U.S. (such as his or her own H-1B status) while waiting for the priority date to become current.  Note also that this is a consideration for all nationalities in the green card process, not just Indian nationals.

If you have any questions about the above, please do not hesitate to contact us.
 

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