August 2016 Visa Bulletin: Retrogression for EB-1 India and EB-2 Worldwide

Practice Areas

Congress has set limits on the number of immigrant visas that can be issued each year. In order to adjust status to that of legal permanent resident, an immigrant visa must be available to the applicant both at the time of filing and at the time of adjudication. The Department of State publishes a monthly Visa Bulletin which lists the cut-off dates that govern visa availability.

The Department of State’s August Visa Bulletin, has announced cutoff dates for final issuance of immigrant visa to be imposed for EB-1 India and China and for EB-2 Worldwide.  The cutoff dates for EB-1 India and China are at January 1, 2010, while the cutoff dates for EB-2 Worldwide are at February 1, 2014. Notably, this is the first time in several years that the EB-1 category has retrogressed. It is anticipated that these categories will be current again in October 2016. The final action cutoff date for EB-2 India will advance a little, to November 15, 2004. There is no change in the final action cutoff date for EB-2 China- which is still at January 1, 2010. The EB-3 final action cutoff dates will advance a bit to November 8, 2004 for India, to May 15, 2009 for Philippines and to March 15, 2016 for Worldwide.  There is no forward movement in the EB-3 final action cutoff dates for China. The final action cutoff dates for EB-5 China, will also remain unchanged at February 15, 2014.

To add to the retrogression woes, there is some confusion regarding the dates in the Visa Bulletin. In October 2015, Department of State had announced that it would, going forward, publish two separate charts for employment-based and family-based visa petitions. These two charts or lists are commonly referred to as the “Application Final Action Dates” and the “Filing Dates.”  At that time, the understanding was that one could file a Form I-485, Adjustment Application under the Filing Date even if the Final Action Date was not current. However, very recently, USCIS announced that it would determine which of the two charts may be used each month for Adjustment filing, within one week of Department of State’s publication of the Visa Bulletin. For the month of August 2016, USCIS has already stated that it will only accept adjustment applications in accordance with the Final Action Dates chart, and not the Filing Date chart. In the coming months, applicants are urged to carefully review the information on both USCIS and Department of State websites to determine their eligibility to file Adjustment applications.

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