January 2011 Visa Bulletin: Major Setback in Family Categories

Readers who follow the monthly visa bulletin would know that family based visa categories have enjoyed some nice forward movement during the past year. For example, from Dec. 2009 to Dec. 2010, F2A (children and spouses of lawful residents) has advanced more than four and a half years from Nov. 1, 2005 to Aug. 1, 2010 for most countries except Mexico. Well, what goes up must come down. The rapid advancement has also attracted many new applicants to apply for legal residence recently. As a result, there is major retrogression in the January 2011 Visa Bulletin for family petitions. Most notably, F2A fall back by 32 months to Jan. 1, 2008 from Aug. 1, 2010 for China, India, Philippines, and other countries (except Mexico which goes back almost five years to April 1, 2005). F1 (unmarried sons and daughters of U.S. citizens) for China and India move back more than 13 months to Jan. 1, 2005. F2B China, India, and other countries move back by about 22 months to April 15, 2003 while F2B Philippines goes back by about 9 months to May 15, 1999.

On the employment side, there are slight advancements in some Eb-2, Eb-3 and “other worker” categories. The most significant movement is with Mexico “other worker”, which advances 9 ½ months to April 15, 2003.

There is a recurring lesson to learn about the U.S. immigration system here, i.e., timing is everything. For example, as soon the visa numbers became current for any of our clients, we immediately advised them to file their I-485 applications along with the auxiliary EAD and Advance Parole applications. This is significant as we knew that the rapid advancement in family petitions would not last forever. By acting fast for our clients, they are now in an authorized status of stay in the U.S. Although a pending I-485 does not confer a foreigner any immigration status, the legacy INS and current DHS have made it clear that a person with a properly filed I-485 application can stay in the U.S. while waiting for a final decision by the government. This benefit is more important for those who are not already present in the U.S. in any lawful status. Perhaps more significantly, an applicant for I-485 may also submit the related I-765 Employment Authorization Document application. With a valid EAD, an immigrant is able to work for any employer in the U.S., apply for driver’s license, apply for a social security number, and open up bank accounts, etc. Although the visa numbers do retrogress in January, the I-485s that were filed are still valid under the current USCIS policy.

If the visa numbers for your particular preference category is current in December, it is not too late to file your I-485 application immediately. But you must act fast and file your applications before the end of the month.