Law Office of Leila Freijy, PLLC
Immigration & Compliance Law 
Update on EB-2 Priority Dates
  

The Visa Bulletin for May 2011 was released on Friday, April 8, 2011, and shows movement in visa numbers for EB2 India and China. 

 

As of May, individuals born in China who are in the EB2 category and have a priority date of July 22, 2006 or earlier may file I-485 applications.  Individuals born in India who are in the EB2 category and have a priority date of May 8, 2006 or earlier may file I-485 applications.  This represents forward movement of about 2 months for EB2 India and about 1 week for EB2 China.  While this may not seem like much, it represents the first movement in EB2 India since September 2010.

 

Jay Solomon, a member of the American Immigration Lawyers Association (AILA), last week prepared a document describing and addressing the allocation of Immigrant Visa Numbers and how the transfer of 12,000 such visa numbers from the EB-1 to the EB-2 category impacted priority date movement. 

 

I am providing the information posted by Mr. Solomon (almost in its entirety) for your reference: 

 

The State Department has just allocated more than 12,000 extra visa numbers to EB-2 applicants. Most went to applicants from India. The EB-2 India date in the May Visa Bulletin advanced for the first time since September 2010. EB-2 India and China may continue to advance for the rest of the fiscal year, though they are unlikely to pass December 2006.


Background

 

There are about 140,000 employment-based visa numbers available for fiscal year 2011. Each independent country of the world is limited to no more than 7% of that total. There are five employment-related preference classifications, with each allocated a certain percentage of the total. The second preference (EB-2) is allocated 28.6% of the total.

 

Visa Issuance


Visa numbers are made available in priority date order within each preference classification without regard to the country of chargeability of the applicant. There is an exception for those countries which are expected to reach their 7% limitation within a fiscal year. Applicants from those countries are allocated visa numbers within preference
categories.


India and China are both expected to reach their 7% limitation in fiscal year 2011 based on the "reasonable estimates" of visa usage the Visa Office is permitted to make by law. INA 203(g). In fact, India had already reached its 2011 EB-2 allocation by April 2011,
and China is well on track to utilize its entire allocation by July. This means that India and China are limited to no more than 28.6% of their entire country limitation in EB-2.


Thus, even though the rest of the world is "current," the China and India EB-2 cutoff dates are currently set to 2006 to manage the approximately 2,800 visas typically available under the EB-2 annual limit for each country subject to the 7% limitation. 

 

The law provides that if the 140,000 employment-based visa numbers are not used, the extra visa numbers are to be utilized without regard to the 7% per country limitation. The law also provides that unused visa numbers from EB-4 and EB-5 will be added to the EB-1 total, and unused EB-1 visa numbers become available for EB-2.

 

While visa numbers aren't "unused" until the fiscal year ends on September 30, the law provides that the Visa Office can allocate visa numbers during the year based on reasonable expectations of usage.
Because of a drop in overall employment demand, particularly in EB-1, the Visa Office is currently estimating at least 12,000 extra visa numbers will be available for EB-2 this year. And those 12,000 numbers can now be considered for potential allocation without
regard to the EB-2 per country limitation which otherwise affects India and China.


Where Do the Additional 12,000 EB-2 Numbers Go?


By law, the extra 12,000 EB-2 numbers are made available to the entire world in priority date order. INA 203(e). And they are allocated without regard to country of chargeability.


The "current' EB-2 availability for countries other than India or China indicates that the demand from those countries is met from the base 28.6% allocation, without the need for extra numbers. This leaves all 12,000 extra visa numbers to be utilized by India and China.


By law, the 12,000 "otherwise unused" numbers which will be available for EB-2 in 2011 are allocated in priority date order. The law provides that they are allocated without regard to the per country limits once the State Department determines that country has
reached its EB-2 limit.


There are at least 17,400 applicants who have filed, or who are ready to file EB-2 adjustment of status applications and whose priority dates are in calendar year 2006. For the most part, these are applicants who filed for adjustment of status in July or August 2007 when the Visa Bulletin reported EB-2 as "current" for every country, but whose
applications could not be completed because of EB-2 retrogression for India and China.


In addition, there are an unknown number of applicants with 2006 priority dates who have "upgraded" from EB-3 to EB-2 by filing new PERM applications and preference petitions. And there are an unknown number of applicants with approved EB-2 petitions
who do not have pending adjustment of status applications.


There are tens of thousands of additional applicants who have priority dates subsequent to 2006. The 12,000 "otherwise unused" numbers will be fully utilized by those with 2006 priority dates. Of the 17,400 presently "known" applicants, 13,200 are from India, and 4,200 are from China. We would therefore expect that about 75% of the applicants who would benefit would be from India. However, there are substantial numbers of Indian applicants whose priority dates are presently not current, but earlier than any China EB-2 applicant whose priority date is available.


As of March 2011, the EB-2 priority date from China was July 8, 2006 and India was two months behind at May 8, 2006. The EB-2 priority date for India will advance until either the 12,000 visa numbers are used, or until it becomes equal to the China EB-2 date. The China and India EB-2 dates will then advance together. In April (and for the next few months), India EB-2 will be earlier than China EB-2. We would therefore expect India to benefit from more than 75% of the extra 12,000 EB-2 numbers because we believe more than 75% of those with the oldest EB-2 priority dates are from India.  [This is in fact what happened.]


So Is the Visa Office Discriminating against China?


If more than 75% of the "otherwise unused" visa numbers were allocated to India instead of split between India and China, would it mean the Visa Office discriminating against China? Is it favoring India? The Visa Office is neither discriminating against nor favoring any country in allocating the "otherwise unused" numbers. It is simply
following the law.


The law requires the "otherwise unused" visa numbers to be allocated in priority date order. There are more applicants from India than China with older priority dates. The applicants with the older priority dates will get the visa numbers first. That is the law.


Those are the applicants who have waited the longest. Most of them are from India.  The allocation of extra numbers is done by the Visa Office without regard to a person's nationality or country of birth. The allocation is made by "place in line," or priority date, as required by law. The people who have waited the longest go first. That is the law.

 

To give half the extra numbers to persons from one country and half
to persons from another would violate the law. 

H-1B Cap Count 
As of April 7, 2011, approximately 5,900 H-1B cap-subject petitions were receipted against the total of 65,000.  Additionally, USCIS has receipted 4,500 H-1B petitions for aliens with advanced degrees from U.S. institutions against the additional quota of 20,000.
* * *
  
If you have any questions or concerns about the information provided in this email, please don't hesitate to contact me.

 

Sincerely,

 


Leila Freijy
Law Office of Leila Freijy, PLLC
Contact
Leila Freijy, Esq.
1755 W. Big Beaver
"Heritage Square"
Troy, MI 48084
248.961.2196
248.287.4115 (fax)
In This Issue
EB-2 Priority Dates
H-1B Cap Count