Cut off date for US employment-based immigration visa holders may change – Affects Indians and Chinese

The US Department of State (DOS) has released the April Visa Bulletin and announced that the EB2 employment based immigration priority cutoff dates for Indian and Chinese nationals have stayed the same as in the March bulletin. However, the cutoff date for EB2 immigrant petitions for Indian and Chinese nationals could go back to August 2007 in May or June 2012. This will mean that visa applications received on or before August 2007 will be processed. Visa applications received after this date will have to wait for the cut off date to become current.

The cutoff date is currently 1 May 2010. If the cut off date changes to August 2007 this could mean years of further delay in processing of employment based immigration visas for Indian and Chinese nationals.

Priority dates determine when a foreign national will have the ability to file their Adjustment of Status (AOS) applications and obtain their green card. A priority date is the date an application is initially filed in the green card process. Processing of a visa can start if the immigrant's priority date is earlier than the cutoff date listed in the most recent Visa Bulletin.

The EB2 Visa is the second employment based preference visa category allowing immigrants with advanced degrees or exceptional ability to gain permanent residence in the US. To qualify for an EB2 visa you must have an advanced degree or equivalent in a professional field, or exceptional ability in science, art or business.

The DOS publishes a monthly visa bulletin that lists the cutoff dates for different immigration categories and birth countries. Only immigrants with priority dates before the cutoff date are permitted to file their AOS applications and apply for their green card. The cutoff dates generally move forward over time as old cases are disposed of. However, in certain cases, such as if a large number of old cases work their way through the system at about the same time, the cutoff dates can retrogress. Retrogression means that the dates would be returned to an earlier date, which could be detrimental to applicants applying for permanent residency. If the cut off date is moved to an earlier date then applications submitted after the designated date will not be accepted.

The length of time you must wait in line before receiving an immigrant visa or adjusting status depends on:
  • The demand for and supply of immigrant visa numbers
  • The per country visa limitations
  • The number of visas allocated for your particular preference category
The DOS stated 16 March 2012 that the EB2 India and China category is likely to retrogress in the May or June 2012 Visa Bulletin according to Charles Oppenheim, Chief of the Visa Control and Reporting Division at the DOS. He estimated that it may become necessary to retrogress the EB2 date back to approximately August 2007.

This now means that it is critical for any qualified individuals with a current priority date to submit an AOS application to US Citizenship and Immigration Services (USCIS) as soon as possible. It is also important to note that the possible retrogression will affect AOS applications that are currently pending with USCIS. USCIS may not accept or approve an AOS application for an individual whose priority date is not current in the Visa Bulletin. Therefore, in the event that EB-2 visa numbers for India and China move back to August 2007 as predicted, individuals with pending AOS applications could be waiting several years longer than they originally expected.

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