EB2-China & India FY 2011 Movement Based on June Visa Bulletin

June 2011 Visa Bulletin has released, and EB2-India and China finally had a significant movement that was hoped after Mr. Charlie Oppenheim made a statement about atleast 12,000 unused visa numbers available from EB1 category for spillover to EB2 category. EB-2 China moved forward by two and a half (2.5) months to October 15, 2006, while EB-2 India moves forward after last month’s notable 7-week advancement by three and a half (3.5) months to October 15, 2006. In this article we will like to analyze statements in Visa Bulletin and discuss where EB2-IC will stand by end of this fiscal year (September 2011),

Notes from June Visa Bulletin for EB2-IC movement

"As mentioned in the May Visa Bulletin, Section 202(a)(5) of the Immigration and Nationality Act (INA) prescribes rules for the use of potentially “otherwise unused” Employment numbers. During May the India Employment Second preference cut-off date is governing the use of such numbers, because India had reached its Employment Second annual limit."

There is nothing new in this statement. This was previously mentioned in May visa bulletin. EB2 India has reached it's annual limit and has started using yearly spillover or unused visa numbers from EB1.

"Since October there has been heavy demand by applicants "upgrading" their status from Employment Third to Employment Second preference. The rapid forward movement of the India Employment Second preference cut-off date in May had the potential to greatly increase such demand. Therefore, the determination of the June cut-off dates was delayed in order to monitor this demand. At this time the amount of new "upgrade" demand has been minimal; this has allowed the Employment Second preference cut-off date governing the use of the Section 202(a)(5) numbers to advance significantly for June."

As DOS mentioned in their past visa bulletin that they were interested in gauging EB3-EB2 porting demand and were very cautious before they could start using the unused visa numbers to progress EB2-IC dates. They checked demand for upgrade for first 10 days of May before advancing dates. Seriously .... they thought they will know the new porting demand in 10 days when PERM approval rate are at a year low level since past two months, and DOL is looking more to approve audit cases. Other than this, advancing dates only to 01 July 2006 for last bulletin would have not given them any real demand what they were looking for, unless they were worried about porting demand for PDs from 2002 to May 2006.

So my take on the statement "new upgrade demand has been minimal" is that most of the individuals with PDs between 2002 and May 2006 has exhausted their means, and others who are still working on it are stuck in PERM approval queue.

Advancing dates for EB2-IC to '15 October 2006' in June visa bulletin is a good move by DOS to gauge new upgrade demand for PDs in 2006, and at the same time this allows continuous demand for folks with PD pre-May 2006. In doing so DOS has exhausted almost 10,000-12,000 unused visa numbers available from EB1 category.

"The same cut-off date will apply to both China and India Employment Second preference. Note that under INA Section 203(e) all of the “otherwise unused” numbers must be provided strictly in priority date order regardless of the applicant’s chargeability"

As mentioned in our past posts that spillover is used within a category purely based on First In First Out (FIFO) principle regardless of applicant's country of chargeability.

"Cut-off date movement for upcoming months cannot be guaranteed, and because of the variables involved, no assumptions should be made until the dates are formally announced. Should there be a sudden or significant increase in India and China Employment Second preference demand it may be necessary to slow, stop, or retrogress that cut-off date as we approach the end of fiscal year 2011."

We will discuss this in detail below.


What can we expect for EB2-IC for rest of the fiscal year 2011?

Since DOS has completely used the available 10-12k unused visa numbers from the EB1 category this portends that we should expect small or no movement for EB2-IC in July visa bulletin. Any further movement for EB2-IC will only be due to unused visa numbers available from EB5 and EB2-ROW-M-P category.

EB2-ROW-M-P demand (FA)
But recent analysis of EB2-ROW-M-P PERM data for first two quarter suggests that demand for EB2-ROW-M-P for current fiscal year will be around 28,600 + 2,000. If this trend would change, we could see more demand (e.g. few unsuccessful EB1 folks from first quarter of fiscal year trying under EB2-ROW) as we will move towards end of fiscal year and EB2-ROW-M-P could yield no or less visa numbers as spillover. As of now we should expect only 5000 at most from EB2-ROW-M-P demand and as less as 3000.

EB5 demand (FU)
It is difficult to gauge EB5 demand. But if this year will see more demand for EB5 compared to last year, number of visa numbers available could be less. We expect at least 4000- 6000 unused visa numbers from EB5.

EB3 to EB2 Porting demand (PO)
How upgrade demand would shake up in coming months is far beyond calculable. All we can do is predict and assume. In coming months majority of demand could be from folks with PD after May 2006 and some portion could be from those who are currently in PERM queue. These numbers can be anywhere from 2000-2500. These are numbers which will control retrogression or stall of EB2-IC cut-off dates atleast for July visa bulletin.

Now some good news (EB1)
Knowing Mr. Oppenheim he would have never used all it's unused visa number unless he was sure he has enough lying under his sleeves in case EB2-ROW demand surges far beyond it's annual limit for current fiscal year. This suggest that DOS believes that either EB5 demand will yield atleast enough numbers that we predict or EB1 demand has potential to yield more (say atleast more 4000 -6000 visas).

Spillover available for the remaining fiscal year
Minimum = FA (lower bound) + FU (lower bound) +EB1 (lower bound) - PO (higher bound)
= 3000 + 4000 + 4000 - 2500 = 8500

Maximum = FA (upper bound) + FU (upper bound) +EB1 (upper bound) - PO (lower bound)
= 5000 + 6000 + 6000 - 2000 = 15000


Summarizing above headers
EB2-IC movement has potential to progress slowly or stall in July visa bulletin due to porting numbers and any increase in demand beyond expected can cause EB2-IC to retrogress in July visa bulletin. Expected movement for EB2-IC in coming visa bulletins is listed below. If this is it from EB1 category and we will not receive any more unused visas then EB2-IC will not cross December 2006.

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