Immigration Road Blog

January 2010 visa bulletin delivered little to cheer about, but DOS offered some predictions on future visa availability which can be quite helpful.

Employment-Based First, Fourth and Fifth Preferences
For January 2010, all EB1, EB4 and EB5 categories remain current.

Employment-Based Second Preferences (EB-2)
All EB2 countries other than India and China are still current in January. For India-born applicants, the cutoff date is still 01/22/2005 – no change from the December 2009 visa bulletin. Applicants from mainland China saw their PD cut-off date advancing just one month, to 05/01/2005.

Employment-Based Third Preferences (EB-3)
The situation is not much better for EB-3; although all countries of chargeability moved forward, it was a 1 or 2-month advance across the board. For January, EB3 Worldwide, Philippines and China stand at 08/01/2002, while Mexico is one month behind at 07/01/2002, and India trailing by one year at 06/22/2001.

EB-3 Other Workers category has the same PD cutoff date for all countries: 06/01/2001.

How come EB cutoff dates didn’t move in recent months?
The Department of State offered an explanation in the January Visa Bulletin: At the end of FY 2009, which ended on September 30, 2009, many EB categories were “unavailable.” So when FY-2010 visas were released during October and November, the demand was very high because of the large number of eligible I-485 cases. USCIS was also processing green card applications at a fast pace, and may have pre-adjudicated many of them, which resulted a high depletion rate of visa numbers for the first quarter.

With older cases now near completion, another batch of visa numbers are being released, which is the reason why January has started to see some forward movement.

Projections for cut-off date movement for the remainder of FY-2010
The Department of State offered some predictions on visa availabilities from now to September. These projections are helpful in many ways, but should be treated as just estimates.

• EB-1 is likely to remain current for all countries of chargeability throughout FY-2010.
• EB-2, other than India and China, is also likely to remain current.
• EB-2 China and India will continue to be oversubscribed, and may even become “unavailable” if high demand depletes available visa numbers before the end of September.However, if there are unused visa numbers from a particular category during a calendar quarter, they may be made available to China and India (or other oversubscribed counties) without regard to per-country limitation. This is usually referred to as visa “rollover” or “spill-over” in the immigration community.In case of visa rollover, the same cutoff date is applied to each country receiving the extra visa numbers. So if EB2 India is still more retrogressed than China when that occurs, more visa numbers may go to EB2 India because there are more applicants with earlier priority dates.
• EB-3 is expected to move forward but continue to have cut-off dates for all countries. For this reason it is unlikely there will be any visa numbers unused.

In summary, DOS projects the following cutoff date movement for the remainder of FY2010 (best case scenario)

Employment Second (EB-2):
China:	July through October 2005
India:	February through early March 2005
In case of visa rollover or spillover:
China:	October through December 2005
India:	October through December 2005
Employment Third (EB-3):
Worldwide:	April through August 2005
China:	June through September 2003
India:	January through February 2002
Mexico:	January through June 2004
Philippines:	April through August 2005

Family-based visa bulletin projections
Cutoff date movement in the family preferences has been relatively fast recently and DOS expects the trend to continue for at least a few more months. The reason is that fewer applicants are proceeding with their consular processing cases, as well as the low volume of FB adjustment of status cases. However, DOS warns that the movement may slow or even stop at some point, and certain categories may retrogress further if demand picks up.

October 2009 visa bulletin – the first for FY 2010 – was released today by the Department of State.

Employment-Based Second Preference

EB-2 China advanced only two months to March 22, 2005, while India inched ahead to January 22, 2005. Although dissappointing, we still may see quite a few I-485 approvals for applicants with a 2004 or early 2005 priority date. As widely reported, these cases should have been pre-adjudicated by USCIS and are in line to receive the first batch of visa numbers for the new fiscal year.

EB2 ROW (Rest of the World), Mexico and Philippines continue to remain current for October 2009.

Employment-Based Third Preference

After a five-month shutdown, all EB3 categories have visa numbers available for October, but retrogression is still severe across the board. Cutoff dates are set to either 2002 or even 2001. We had hoped that it would be at least 2003, at least for some categories under EB3. Now we have to wait for the November visa bulletin for that to happen.

Employment-Based Forth Preference

EB-4 became current, as expected. However, EB4 Religious Worker category remains unavailable, and here is DOS’ explanation:

Employment Fourth Preference Certain Religious Workers: Pursuant to Section 1 of Public Law 111-9, the non-minister special immigrant program expires on September 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after September 30, 2009. Visas issued prior to this date will only be issued with a validity date of September 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight September 30, 2009.

Employment-Based Fifth Preference

EB5 categories for Investors and Regional Centers remain current, but EB5 Pilot Program is facing expiration date of 09/30/2009:

Employment Fifth Preference Pilot Categories(I5, R5): Section 101 of Division J of the Omnibus Appropriations Act, 2009, extended this immigrant investor pilot program through September 30, 2009. The I5 and R5 visas may be issued until close of business on September 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2 or R5-3 visas may be issued after September 30, 2009.

If Congress acts to extend one or both programs mentioned above, their cutoff dates would immediately change to “current” for October.

September is the last month of Fiscal Year 2009 and there are two substantial movements in term of visa cut-off dates:

1. China EB2 and India EB2 will both advance to January 8, 2005; and
2. All EB4 categories have become unavailable, starting immediately.

Employment Based Second Preference

India EB2 cutoff date is moving to January 8, 2005. Believe it or not, there are still more than a few Indian professionals waiting since 2003 and 2004. It is quite a relief for those early filers and their families. India EB2 cutoff dates have been around 2003 and 2004 all year, briefly retrogressing to January 1, 2000 in the July visa bulletin, so finally moving on to 2005 is welcoming news.

China EB2 is also set to January 8, 2005, more or less in line with most FY2009 visa bulletins for this category, except for July.

It appears that July is a “catch-up” month, when USCIS and DOS intentionally set cutoff dates more conservatively, wait for case processing to catch up, re-evaluate visa number usage, and get ready to allocate the final block of visa numbers during August and September. The image below is a chart of visa number retrogression for all EB2 categories.

Employment Based Third Preference

All EB3 categories remain “unavailable” for September, which means no EB3 AOS applications will be approved, and no new I-485 will be allowed to be filed for the month. Starting October 1st, next year’s visa numbers will become available.

Employment Based Forth Preference

In a surprising move, DOS announced that visa numbers for the entire EB4 preference, including Certain Religious Workers categories, have been exhausted. More importantly, the “unavailable” status took effect immediately, on August 11, rather than starting September 1. This is a nightmare for people who are eligible to file I-485 based on the current visa bulletin, but have not been able to do so.

The EB4 Certain Religious Workers category is set to expire on September 30, unless extended by Congress.

DOS does indicate that EB4 will become current again in the October 2009 visa bulletin.

Other Employment Based Preferences

All EB1, EB2 other than China and India, and EB5 categories are “current.”

Family Based Preferences

Minor 1- to 3-month movement for most family sponsored immigration categories.

Diversity Visa (DV) Lottery Categories

For DV-2009 registrants, all DV categories remain current (except Egypt and Ethiopia) during September. Note that September 30, 2009 is the last day an immigrant visa may be issued to a DV-2009 applicant. DV-2010 visa cut-off numbers will be established for October.