Taking Inventory: Insights on the April Visa Bulletin

Each month, foreign nationals await timely announcements from the U.S. Department of State’s (DOS) Visa Bulletin and U.S. Citizenship and Immigration Services (USCIS) to determine whether they are eligible to move forward with the last stage of their employment-based or family-sponsored permanent residence (“green card”) process. For April 2019, DOS and USCIS have confirmed that individuals in the employment-based green card process may rely on the final action dates chart in the Visa Bulletin.

The April 2019 Visa Bulletin: Final Action Dates for Employment-Based Preference Cases

Overall, in comparison to the Visa Bulletin for March 2019, the April 2019 Visa Bulletin indicates incremental forward movement. The smallest advancement occurred in the employment-based second preference (EB-2) category for India, with the date moving forward by just three days. Large steps forward occurred across several categories, including EB-2 China and the employment-based third preference (EB-3) category for the Philippines, with dates moving forward by three months. This level of progress is consistent with DOS forecasts included in the Visa Bulletin for February 2019.

Identifying Larger Trends

By making month-over-month and year-over-year comparisons of the numbers in the Visa Bulletin, certain trends appear regarding the availability of immigrant visas. The descriptions below highlight existing and emerging trends within the different categories.

EB-1 Worldwide

In August 2018, for the first time in nearly 11 years, the employment-based first preference (EB-1) category for All Chargeability Areas Except Those Listed (also referred to as “Worldwide”) retrogressed, or became backlogged. In contrast, so far this year, the EB-2, EB-3, and lower-preference categories in the Worldwide category have remained current. Even though the priority dates for the EB-1 Worldwide category have advanced steadily since the start of fiscal year (FY) 2019, which began October 1, 2018, employers and employees may want to consider the EB-1 retrogression before deciding whether to move forward with an EB-1 case or pursue an EB-2 or EB-3 PERM-based strategy. Given the circumstances, the EB-1 category does not necessarily present the quickest path to a green card. It is not clear when the EB-1 category will be current once again. Employers and employees may want to consider the merits of both strategies and other relevant considerations, such as the amount of visa time remaining and whether there is sufficient time to wait for the priority date to become current to reach the final step in the green card process: the filing of the adjustment of status application.

EB-1 China and EB-1 India

The EB-1 China and EB-1 India categories have been retrogressed since April 2018. This is not a new trend. In FY 2016, FY 2017, and FY 2018, these EB-1 categories were retrogressed two, four, and six months in the years, respectively. In FY 2019, the EB-1 China category has been retrogressed every month, including April 2019, and this trend seems likely to continue. Prior to FY 2016, these categories had not experienced retrogression since September 2007.

For a foreign national whose country of birth is China, a viable EB-1 case would present some advantage and shorten the overall wait time during the green card process. Employers may want to consider this relative advantage, as the priority dates on DOS’s final action dates chart for EB-1, EB-2, and EB-3 China are within two years of each other. For a foreign national whose country of birth is India, a viable EB-1 case would still present the significant advantage of shortening the overall green card process; the EB-1 India priority date is ahead of that of EB-2 India by nearly eight years.

EB-2 and EB-3 China

Since FY 2013, there has been an ongoing dance between the EB-2 and EB-3 categories for China, with the priority date for EB-3 occasionally advancing farther than that of EB-2. DOS advances priority dates to generate enough demand for the number of green cards available for the remainder of the year. When EB-3 advances farther than EB-2, DOS anticipates there will be EB-3 downgrade requests, but it’s unknown how many EB-3 downgrade requests it will take to impact demand for EB-3 green cards. Over the last year, EB-2 and EB-3 flip-flopped in July 2018, September 2018, and again in December 2018, with EB-2 holding steady with a date farther ahead than that of the EB-3 category. If history is any indication, we can expect this dance to continue.

Under the April 2019 Visa Bulletin, there is no advantage for employees to downgrade to EB-3. However, considering that the priority dates for EB-2 and EB-3 China have danced back and forth for several years, it is reasonable to expect that requests for EB-3 downgrades are in the pipeline.

EB-2 and EB-3 India

In contrast to China, the priority dates for EB-2 and EB-3 India do not have an established history of toggling back and forth. The EB-2 India category had remained ahead of EB-3 India with the more advanced date. However, in February 2019, the priority date for EB-3 India surpassed the higher-preference EB-2 India category by 16 days. The April 2019 Visa Bulletin shows that the margin between the two categories has now widened to greater than two months.

If the pattern seen with EB-2 and EB-3 China is any indication, this may be the beginning of a push and pull between EB-2 and EB-3 India. Given the very close margin between the priority dates for EB-2 and EB-3 India, there may not be a clear advantage to an EB-3 downgrade request at this time.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the Visa Bulletin and will post updates on the Immigration blog as additional information becomes available.