May 2012 Visa Bulletin: Severe Retrogression for EB-2 China and India

The May 2012 Visa Bulletin will reveal severe retrogression in the priority date cut-offs for the India and China EB-2 (Employment-Based, second preference) category according to Charles Oppenheim, Chief of the Immigrant Visa Control and Reporting division at the U.S. Department of State (DOS). According to the DOS’ April 2012 Visa Bulletin, visa numbers are available in the EB-2 category for Indian and Chinese nationals with a priority date prior to May 1, 2010. As a result of this retrogression, visa numbers will move back, by more than two years, to August 15, 2007. Up until the last two Visa Bulletins, cut-off dates for the India and China EB-2 category had advanced significantly. As demand for the category increased, forward movement slowed and then halted, with dates for the April bulletin remaining the same as the March bulletin.

Factors causing the retrogression include not only an increase in demand for immigrant visa numbers in the EB-2 category, but also higher demand than in 2011 for visa numbers in the EB-1 (Employment-Based first preference) category, meaning that there are fewer, if any, unused EB-1 visa numbers that, in accordance with the regulations, are available to be added to the EB-2 quota.

Immigrant visa availability cannot be predicted since it is based on demand. Once the immigrant visa numbers are exhausted for the fiscal year, new immigrant visa numbers are not available until the beginning of the next fiscal year, which is October 1, 2012. The U.S. Citizenship and Immigration Services (USCIS) has informed Oppenheim that it will continue to “pre-adjudicate” adjustment applications received through April. The “pre-adjudicated” cases will be held by the DOS in the “pending” demand file so that the cases will be ready in October, or earlier, if the current number use pattern changes and they are needed at the end of this fiscal year to ensure utilization of the full employment-based permanent resident visa allocation.

Ogletree Deakins will work with eligible EB-2 Chinese and Indian nationals with current priority dates to ensure that their immigrant visa and adjustment of status applications are filed and received by USCIS by April 30, 2012. Once the immigrant visa numbers retrogress, those with priority dates later than the cut-off date specified in the Visa Bulletin will be unable to file until a visa number becomes available once again.