Visa Bulletin Cut-Off Dates and its Effects

Visa Bulletin Cut-Off Dates and its Effects

The State Department recently released the long-awaited October 2009 Visa Bulletin, representing the priority dates for the new fiscal year 2010. From the month before, the October Visa Bulletin shows forward movement in China’s EB-2 category of two months (March 22, 2005) compared with India’s EB-2 progression of only 2 weeks (January 22, 2005). Most interesting to note is that EB-3 priority dates are now from 2001 and 2002, having actually gone backwards from the priority dates posted in April 2009, the last month before they became unavailable. In April, China EB-3 reflected February 22, 2002 and India was at April 15, 2001. All other countries reflected an EB-3 date of June 1, 2002. A severe retrogression in October means that in the six months since April, priority date cutoffs actually went backwards between 6 months to a year.

Visa retrogression is noteworthy because in order to apply for a green card through either adjustment of status in the United States or consular processing overseas, a visa number must be available. An applicant’s place in line for these visas is determined by the priority date, which is either the date the application for labor certification is filed with the Department of Labor (DOL) or, for those applications that don’t require labor certification, the date the petition is filed to US Citizenship and Immigration Services (CIS). Visa numbers are only available to those applicants whose priority dates are current. When visa retrogression occurs, it sometimes also happens that an applicant whose priority date was current must now wait additional time for the priority date to become current again.

In previous years, processing of the final step of the green card process (Form I-485 or adjustment of status) was slower, causing a substantial backlog of employment-based cases. By completing fewer cases in the year, fewer immigrant visa numbers were being used. When processing time sped up, immigrant visa numbers were used up more quickly. The resulting decrease in availability in visa numbers led the State Department to set a limit on visa distribution.

Now, CIS has indicated that the number of petitions by employers to allow foreign workers to work permanently in the US is down significantly over the last two years. In an August 6, 2009 article in USA Today, CIS indicated that the nation’s deep recession and high unemployment have contributed to the steep decline in employer-sponsored applications. In fiscal year 2007, 235,000 applications were submitted. In 2008, a greater than 50% decline in applications (104,000) was realized. And in the first eight months of fiscal year 2009, fewer than 36,000 applications were submitted. These statistics are probably the reason that despite State Department predictions several months ago of EB-2 becoming unavailable for some countries, in fact the October Visa Bulletin shows forward movement in the EB-2 category.

Whatever the status of priority dates in future Visa Bulletins, we advise always maintaining valid, underlying, nonimmigrant status. Applicants who have pending applications for adjustment of status are eligible to apply for employment authorization and advance parole during the pending period of their applications. Where possible, explore other avenues to permanent residence, including new applications in high preference categories. Finally, by monitoring the monthly Visa Bulletin, clients can plan ahead for when their priority dates become current and have all the necessary documents in place for timely filing of Form I-485.