As anticipated, there is bad news for those seeking U.S. permanent residence in the Employment-Based 2nd Preference category for India.  For the month of November 2014, the EB-2 India cut-off date will take a giant leap backward, moving from May 1, 2009, to February 15, 2005.  2005?!  Yes, 2005.  This sobering update was announced in the State Department’s latest Visa Bulletin  .  If this were a game, the “giant leap backward” would be meaningless, but it’s not a game—the backlog and lack of measures to resolve or at least alleviate this difficult situation impacts the lives of many hard-working people who are looking for certainty in their futures.

 

The November 2014 Visa Bulletin  includes commentary explaining that there is no expectation that the EB-2 India date will move forward during any of the next 3 months.  As in the past, the retrogression is likely the result of those in the EB-3 India category advancing into EB-2 positions, as well as fewer drop-down numbers from the EB-1 category due to increased EB-1 filings.

 

As for the EB-3 India category, there will be progress in November 2014, albeit minimal.  The date for EB-3 India will move from November 15, 2003, to November 22, 2003.  “Little if any movement” is projected for each of the next 3 months at minimum.

 

By way of information, the cut-off dates for over-subscribed categories apply to those who are “chargeable” to the country listed.  A nice summary regarding “chargeability” appears on the USCIS website  which explains that “Chargeability is usually determined by country of birth. Exceptions are made to prevent the separation of family members when the limitation for the country of birth has been met.”  More detail about chargeability, can be found in Volume 9 of the State Department’s Foreign Affairs Manual.  (9 FAM 42.12, Notes)

 

Some points to consider…

  • You are likely already well aware that if your priority date is current this month and you don’t file an I-485 Adjustment Application such that it is properly received by Immigration before the end of this month, it will be too late for at least the next several months (years?).  This is because in order to file the I-485 (or consular process), only applicants with a priority date EARLIER than the cut-off date for an oversubscribed preference category may receive a visa number in any given month.

 

  • With both the EB-2 India and EB-3 India categories backlogged by approximately 10 years(!), there is no better argument in favor of immigration reform, including at minimum work authorization for H-4 dependents—ideally for spouses and for working-age children.  Hopefully this will come to pass.

 

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Ms. Wadhwani is a partner in the Immigration Practice of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.