The U.S. Department of State’s (DOS) Visa Bulletin sets out per country priority dates that regulate when an individual may begin the final phase of the “green card” process, either through adjustment of status or consular processing of an immigrant visa application. Those with a priority date that is earlier than the date listed for that visa category and country can proceed with their application.
Last week, Charles Oppenheim, Chief of the DOS’s Visa Control and Reporting Division, announced that due to the high volume of pending employment-based second preference EB-2/India petitions, effective immediately, the EB-2/India preference category will be “unavailable” through the end of the current federal fiscal year ending on September 30, 2014.
At the same time, Oppenheim indicated that visa numbers for EB-2/India should be available as of October 1, 2014, at the start of the new federal fiscal year. However, most importantly, visa retrogression for the EB-2 India category is possible as early as November 2014. Thus, it is likely that there will be a narrow window of time for current EB-2/India-based adjustment of status (AOS) applications to be submitted to U.S. Citizenship and Immigration Services (USCIS) this fall.
USCIS will continue to accept EB-2 India AOS filings with a current priority date. However, since the EB-2 India category has been made “unavailable” and visa numbers are no longer available in this category for September, USCIS may not act on cases until October.
The October 2014 Visa Bulletin lists the EB-2/India category with a cutoff date of May 1, 2009. EB-2/India-based AOS applications with a priority date prior to May 1, 2009 should be accepted by USCIS during October.
November 2014 and Beyond
Given the demand in this category, DOS predicts the priority date for EB-2/India will likely retrogress from May 1, 2009 to early 2005, which may occur as soon as November 2014.
A significant percentage of EB-3 to EB-2 upgrades by Indian nationals is cited as a major factor with respect to the predicted retrogression, and DOS expects a large volume of such filings in the coming months. Therefore, EB-2/India applicants with priority dates prior to May 1, 2009, should file their AOS applications before the end of October 2014.
Ogletree Deakins will continue to work with eligible EB-2 Indian nationals with current priority dates to ensure that their adjustment of status applications are filed with USCIS by the end of October 2014, in anticipation of the predicted retrogression. Ogletree Deakins is monitoring developments with respect to the Visa Bulletin and will provide updates as more information becomes available.