As we reported in the November 2011 issue of the Immigration eAuthority, the cut-off dates for the India and China EB-2 (Employment-Based, second preference) category have been advancing at a rapid rate. Cut-off dates will leap forward, by nearly 10 months, to January 1, 2009, according to the Department of State’s (DOS) January 2012 Visa Bulletin. U.S. Citizenship and Immigration Services (USCIS) reports lower than anticipated rates for Form I-485 (Application to Register Permanent Residence or Adjust Status) filings as the basis for the aggressive advance in the cut-off dates. While this action increases the potential for retrogression of the cut-off dates at some point during the year, it also provides the best opportunity to utilize all available numbers under the annual limit.
Employers and foreign nationals should bear in mind that USCIS does not send advance notification prompting further action by applicants in the United States who opt to adjust status via Form I-485. Rather, employers and their attorneys must monitor the DOS Visa Bulletin to determine when the sponsored individual may file Form I-485. While, in general, Form I-485 may be filed during the month in which the Visa Bulletin is current for the related visa category and country of chargeability, it is important to note that, simply because it appears, from the Visa Bulletin, that those with a certain priority date are current, occasionally the visa numbers are exhausted during the posted month, causing USCIS to return I-485 filings for which there are suddenly insufficient numbers.