Advancement of EB-2 Immigrant Visa Cutoff Dates for India and China
July 16, 2008
The Visa Bulletin for August 2008 advanced the priority cut-off dates for employment-based second preference (EB-2) category for India and China by more than two years, to June 1, 2006. All other employment-based immigrant categories (with the exception of the "other workers" category which changed to "unavailable") remain unchanged. The Visa Bulletin can be viewed at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
A foreign national whose priority date (the date one's first application for permanent residency was filed) is earlier than the cut-off date for his/her particular category and country of birth is eligible to apply for adjustment of status (AOS) or an immigrant visa. Additionally, AOS applicants who previously filed I-485 when their priority date was current only to see the cut-off date retrogress after filing, are eligible to have their already pending I-485 application resume processing after the dates advance past their priority date (applications which have a priority date that is no longer current due to retrogression of cut-off dates after filing are "shelved" until the cut-off date advance past the priority date again).
What Caused the Sudden Advancement in Cut-Off Date?
The law provides that if total demand for visas in an employment preference category is less than all available visa numbers in that category in a calendar quarter, then the unused numbers may be made available without regard to the annual per-country limit. For example: If the second preference annual limit were 40,000, number use by "All Other Countries" were estimated to be only 25,000, and the China/India combined number use based on their per-country limits were 6,000, then there would be 9,000 numbers unused. Those 9,000 numbers could then be made available to China and India applicants without regard to their per-country limits. Based on the information available, the Department of State (DOS), which determines the monthly cut-off dates, decided that the demand from "All Other Countries" for Second preference numbers, plus the amount of numbers available under China and India Second preference per-country limit, would be less than the available numbers under the annual limit for the EB-2 category. Therefore, the unused numbers have been made available to China and India Second preference applicants.
What Does This Mean If I Haven't Filed I-485 (AOS)?
If you were born in India or China, and your I-140 is either approved, pending or will be filed under the EB-2 category, and your priority date is June 1, 2006 or earlier, you will be eligible to file I-485 as early as August 1st (but no sooner than August 1st).
If you were born in any other country, and your I-140 is either approved, pending or will be filed under the EB-2 category, your I-485 can be filed anytime, regardless of priority date.
What Does This Mean If I Already Filed I-485 (AOS)?
Since DOS made the entire EB-2 category "current" back in July 2007, and the August 2008 cut-off date advancement is only up to June 1, 2006, most India and China born applicants who are current under the latest Visa Bulletin have already filed their I-485 application last summer. For those people, this advancement merely means USCIS can resume processing their I-485 applications (assuming they have a pre-June 1, 2006 priority date).
Additionally, India and China born I-485 applicants in the EB-2 category who recently married, but were unable to file I-485 for their new spouse due to the retrogression of their cut-off date, can file I-485 for their spouse starting on August 1 (assuming their priority date is pre-June 1, 2006).
Do I Need To Tell USCIS To Resume Processing Of My I-485 After My Priority Date Returns To Current?
No. There isn't anything you need to do. USCIS monitors the priority date cut-offs, will do a "sweep" of the cases that have become current again, and pull those cases to resume processing.
Should I Expect My I-485 To Be Approved In August If My Priority Date Is Current In August?
Not necessarily. USCIS will adjudicate cases that have a current priority date by the order of I-485 filing receipt date (i.e., first-in, first-out). Adjudication of all cases that are becoming current in August will take time given the large number of cases in the same situation. USCIS asks that people not contact them for 2 months after a pending case's priority date changes from not current to current. Unfortunately, the cut-off date can also retrogress again before USCIS is able to complete adjudication, which would require USCIS to suspend processing until the priority date becomes current again.
Also, approval of the underlying I-140 petition must always precede approval of the I-485.