EB-2 – Immigration Briefs

January 2024 Visa Bulletin is Out and Finally Some movement.

The Department of State released the new Visa Bulletin for January 2024 just yesterday. This blog post will try to provide a summary of any movement in this bulletin of relevance.

Before getting to the summary of the current bulletin, here is a little bit about what the Visa Bulletin is and the information it contains. Every person who becomes a permanent resident in the US is given an immigrant visa number. This includes all those overseas who go to the Consulate and are actually given an immigrant visa stamp in their passport as well as all those who file an I-485 in the US and are NOT given an actual immigrant visa stamp. The Visa Bulletin is a listing of where the Department of State and USCIS are in terms of handing out Immigrant Visas. Every permanent resident category is listed and a date is given (or a C for current) as to which cases can be filed in a given month. Those cases with priority dates PRIOR to the date listed in the visa bulletin can proceed to get an immigrant visa stamp overseas or to have their I-485s approved by USCIS in the US.

It should be noted that the visa bulletin now has two charts – Final Action Dates and Dates for Filing. The Final Action Date chart shows the dates for which immigrant visa numbers are actually available (so I-485s and consular processing cases which can be approved and an immigrant visa number granted). The Dates for Filing chart lists the dates in each category to alert the Consulates and USCIS as to where the Department of State feels the Final Action Dates will be within 6 months. This allows the Consulates to start working on cases that will become current over the next six months and gives USCIS the ability to allow people to file I-485 applications for cases for which the Final Action Date is not yet current but should be current in the near future. Every month, USCIS determines which chart people should use to determine if they can file an I-485 or not. For the month of January 2024, USCIS has determined that, for both Family and Employment-Based Categories, the Dates for Filing chart can be used.

Family Based Cases:

For the most part there was not much movement. The Dates for Filing chart stayed the same, but there was only very little forward movement for most categories. The most suprising was that the F2A category for Spouses and Children of permanent residents backlogged MORE to February of 2019. While we cannot be sure what this means exactly, excpet that they received more requests for immigrant visas than they thought the would, we do know that the Date for Filing in this category still stayed at September 1, 2023. To me this means that, most likely, Department of State still feels that the category will move forward in the nearish future.

Employment Based Cases:

There was LOTS of movement in the Final Action Dates and some movement in the Dates for Filing for most categories this month.

EB-1: Final Action Dates: China moved forward almost 5 months to July 1, 2022; India jumped forward about 3 years to September 1, 2020.; and, The EB-1 worldwide numbers stayed Current. Dates for Filing: China moved forward about 5 months to January 1, 2023; India jumped about 2.5 years to January 1, 2021; and, as with the Final Action Dates, Worlwife numbers were current here as well.

EB2: Final Action Dates: Worldwide numbers moved forward about 4 months to November 1, 2022; China moved forward about 3 months to January 1 2020; and, India moved forward about 2 months to March 1, 2012. Dates for Filing: Worlwide numbers moved forward about 1.5 months to February 15, 2023; China moved forward about 5 months to June 1, 2020; and, unfortunately India stayed at May 15, 2012.

EB-3: Final Action Dates: Worlwide numbers jumped forward about 9 months to August 1, 2022; China moved forward about 8 months to September 1, 2020; and, India moved some (about 1 month) to June 1, 2012. Dates for Filing: China moved forward about 10 months, to July 1, 2021; All other areas stayed the same.

Further Guidance:

Unfortunately the Department of State once again gave no additional guidance with these numbers. We will update you as soon as we hear about any guidance that the Department of State gives out or when a new Visa Bulletin is published, whichever happens first.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

EB-2 Backlogs for All Countries as of December 1, 2022

The December 2022 Visa Bulletin was released today. In the new bulletin, the Department of State has determined that the EB-2 category needs to be backlogged somewhat because of demand. As a reminder, the EB-2 category includes employer-sponsored applications for positions that require an Advanced Degree (Master’s or higher degree) as well as the National Interest Waiver (NIW) self-sponsored applications.

As of December 1, 2022, the FINAL ACTION DATE for all EB-2 cases will be November 1, 2022. This means that only those I-140 EB-2 applications filed prior to November 1, 2022, would be able to have their Adjustment of Status application (I-485) approved (assuming that you had already filed the adjustment of status before December 1, 2022).

As of December 1, 2022, the DATE FOR FILING will be December 1, 2022. USCIS has indicated that it is using the Dates for Filing in December – this means as long as you filed the I-140 before December 1, 2022, you can file your I-485 at that point. However, every month USCIS re-looks at which table it should use to determine filing dates. USCIS decides between allowing people to file the I-485 based upon the Dates for Filing OR the Final Action Dates, and we do not know, as of yet, if, after December, USCIS will continue to use Dates for Filing or not. We will update you as we find out.

The above means that, as of December 2, 2022, there will no longer be ANY concurrent filing of the I-140 NIW and the I-485 allowed. This applies to everyone, regardless of where you were born, and this is a major change for everyone on very short notice. Please contact us if you need more information or help to file quickly.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult a lawyer instead of a blog. Thank you.

Update from Charlie Oppenheim on Immigrant Visa Availability

Unknown Charlie talked with the American Immigration Lawyers Association again at the end of March. Here are some updates that he gave on potential movements of priority dates in the future. To summarize: EB-1 usage is high, not a lot of movement. EB-2 usage is normal so steady movement. For more details, see below.

Data Used By Charlie and Possible Changes in Dates

First, in order to better understand how Charlie determines movement on a monthly basis, it is good to know what data sources he uses. First, Charlie will look at the performance of each category over recent months (visas used, movement on dates, etc.). In addition, Charlie will also use data given to him from USCIS on the number of cases pending at the National Benefits Center and at local offices (please do note that this data is often not totally accurate). Following an early April 2019 meeting at the National Benefits Center, Charlie will have additional data upon which to base the Final Action Dates in the May 2019 Visa Bulletin. If that data demonstrates shifts in the demand trends, Charlie may alter his projections for Final Action Date movements through the second half of the fiscal year.

Family-Based Preference Categories

According to Charlie, movements in the family-based preference categories will remain consistent with those in recent visa bulletins. However, he cautions that we should not get too accustomed to consistent rapid forward movement in these categories. The issue is that Charlie feels that the lack of apparent demand in many of these categories, which is causing the dates to advance more quickly than usual, may eventually result in a great amount of demand materializing all at once. If this were to occur, it could result in an abrupt retrogression and lead to volatility in some categories. In particular, there has been unusually rapid movement in FB-3 and FB-4 Philippines, each of which advance six months in the April 2019 Visa Bulletin. Those who practice heavily in the area of family-based immigration should consult “Section D. Final Action Date Movement” on page 8 in the visa bulletin for more details on Final Action Date movements.

Employment-Based Preference Categories

EB-1:

Reported demand levels across all countries in the EB-1 category remains high. In absolute terms, EB-1 has used more total visa numbers this fiscal year than any other employment-based category, with usage up to 25% higher than that of EB-2, and EB-3. The increased demand for EB-1 Worldwide numbers is negatively impacting EB-1 China and EB-1 India, which in the past have normally benefitted from the availability of otherwise unused EB-1 numbers from other countries.

According to Charlie, do not expect any movement for EB-1 China and EB-1 India Final Action Dates. Movement for both is only possible if EB-1 Worldwide demand slows down to a sufficient level that would allow otherwise unused numbers to be allocated to these countries. Charlie is watching the demand trends in this category very carefully. He cannot yet conclude whether this elevated demand represents a bubble that will be processed and then quickly dissipate, or whether it represents an ongoing consistent demand trend.

EB-2 Worldwide:

Charlie mentioned that only about half of the EB-2 Worldwide numbers for this fiscal year have been used, which is approximately where he would like that number to be. If the current demand trend continues, EB-2 Worldwide should remain current throughout the FY2019.

EB-2 and EB-3 India Remain Flipped:

According to Charlie the same movement patterns as the past couple of months are expected for the foreseeable future (he will update if this changes). EB-2 advanced only 3 days in the April Bulletin and EB-2 advanced a full month, surpassing EB-2 India.

EB-2 and EB-3 China:

In contrast to India, EB-2 China remains ahead of EB-3 China. In April 2019, EB-2 China advances three months to a Final Action Date of April 1, 2016, and EB-3 China advances three weeks to a Final Action Date of August 1, 2015. Like India, these trends are expected to continue for the foreseeable future.

EB-3 Philippines:

Rapid advancement continues for EB-3 Philippines in April, as the category leaps forward three months for a Final Action Date of March 1, 2018. Although a continuing lack of demand will create additional forward movement, be cautioned to not expect this rapid advancement to continue indefinitely.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

National Interest Waiver: You May Be Surprised

Does the National Interest Waiver (a self-sponsored green card application) require that you be working for or funded by the US Government? The short answer is no, it most certainly does not. Is it as hard as the Extraordinary Ability application? Again, the short answer is no, definitely not. The National Interest Waiver is actually a very appropriate application for many researchers and others who either cannot be or do not want to be sponsored by their employers. It allows you to sponsor yourself, and to change jobs and employers fairly easily throughout the process.

So what are the actual qualifications for this application and how do you show your work is in the national interest? Unfortunately, this is a case in which both Congress and USCIS did not issue any guidance as to what the standard should be, so it was left to the courts. Specifically, the Administrative Appeals Office (AAO), in a precedent case (Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998)(NYSDOT)) did explain what is needed to show that your work is in the national interest. After the AAO issued this decision, USCIS formally adopted the decision as their standard.

The NYSDOT case laid out a three part test to determine if your work is in the national interest: 1) you must be seeking work in an area that has substantial intrinsic merit; 2) you must demonstrate that the proposed benefit to be provided by your work will be national in scope; and, 3) you must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your services by making your position available to US Workers. While the above can seem daunting in theory, it is not quite so daunting in practice. What it comes down to is showing you are, and will be, working in an important area and that you have already made a significant impact on your field. What type of documentation can show this?

If you are a scientist you can show this through publishing and presenting your work, citation history, peer reviewing, being accepted for oral presentation or invited to talk, having a paper highlighted at a journal website or elsewhere, having press about your findings. Please note, the above is a list of documents that CAN be used to show eligibility, and it is not a list of ALL documents that are needed, as you can be approved with less than all the above documents. In fact, many of our clients may have 30-50 citations total, they may have anywhere from 2-5 papers, or more. Sometimes they have peer reviewing activities, sometimes they do not. Sometimes they have oral presentations, sometimes not. Every case is different and has to be judged on the totality of the evidence to show whether the evidence shows that the impact of your work has been substantial.

For areas other than the sciences, such as foreign relations, health policy, etc, while the type of documentation can be much the same as above – publications, press, etc, you also have the opportunity to look at your role within projects, programs, or other initiatives. It can also be much more letter focused with letters from government officials or NGOs about the use and implementation of your work, etc. It all depends on whether your work is more academic related or applied in the field.

In essence, US interests are broad in nature, and thus, depending upon the extent of your standing within a specific area, you may very well be a good candidate for this type of visa application.

Please remember, always get your legal advice from an attorney and not a blog. Call and talk to an attorney to get the specifics of this application and your ability to qualify.