A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, March 24, 2012

Major Retrogression Predicted for Employment Second Preference (EB-2) India and China

In a Chicago conference with the American Immigration Lawyers Association (AILA) held on March 16, 2012, the Chief of  State Department's Visa Control and Reporting unit, Mr. Charles Oppenheim, stated that the EB-2 India and China visa category will likely retrogress in the May or June 2012 Visa Bulletin.  The extent of retrogression will be quite drastic, reverting the EB-2 cutoff date back to approximately August 2007 from the April cutoff date of May 1, 2010. 

Reasons for Retrogression:  The recent rapid advancement in EB-2 cutoff dates was to use up all available visa numbers for the fiscal year.  To that end, the State Department has generously advanced the cutoff dates during the past six months from July 15, 2007 (October 2011 Visa Bulletin) to May 1, 2010 (April 2012 Visa Bulletin).  As expected,  the advancement has allowed thousands of adjustment applications and immigrant visa petitions to be filed during the past few months, resulting in rapid exhaustion of visa numbers for the fiscal year.  Consequently, the State Department must exercise restrain now in the allocation of visa numbers through retrogression.  In fact, Mr. Oppenheim has been warning about possible retrogression all along.  The lack of movement in April for EB-2 should serve as a harbinger of future retrogression.

Extent of Retrogression:  Perhaps the surprising aspect of the announcement is not retrogression itself but the extent of it.  Mr. Oppenheim predicted that EB-2 may go back to about August 2007 in May or June.  It means that EB-2 India and China will lose almost all the progress they have made during the past six months.  The extent of retrogression is indeed drastic and catches many applicants by surprise.  Many Indian and Chinese green card applicants will be disappointed by the sudden change in direction after the recent rapid advancement. 

Ways to Handle Retrogression:  First of all,  it is important to note that although the prediction will likely come true, retrogression has not happened yet.  Mr. Oppenheim predicted that May 1 is the earliest possible date that retrogression will happen.  It means that applicants with a priority date earlier than May 1, 2010 (cut off date in April) will still be able to file their I-485 applications or immigrant visa petitions until the end of April. Hence, eligible applicants must take steps to prepare and file their applications as soon as possible. 

For those applicants who are fortunate enough to have already filed their I-485 applications, they should also qualify to apply for their employment authorization document (EAD) and advance parole travel document.  These documents will allow them to work in the U.S. and travel internationally.  Hence, the impact of retrogression should be minimal to them.  In fact, some of these cases will actually be approved before visa numbers retrogress.  Even if their cases have not yet been approved, if their I-485 applications have been pending for six months or longer, they will be able to port their case to another employer if they lose their job in the interim as long as the new position is in the same or similar occupational category.

Finally, for those who are not able to file their green card applications due to retrogression, they must continue to wait patiently for the next opportunity, which may not be that far fetched.  Even though Mr. Oppenheim's predictions are usually accurate, the extent of retrogression will depend on actual visa usage.  Further, visa numbers will become available again in October when the new fiscal year begins.  Depending on visa number usage, it is possible that we will see advancement in visa numbers again soon. 

Conclusion:  An immigrant visa is required by most green card applicants, and visa numbers are controlled by law.  Retrogression happens when the number of visa applicants exceeds the number of available visa numbers.  Applicants cannot control visa numbers but should continue to maintain their lawful status and obtain the necessary documents to prepare for the filing of their green card applications.

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