Visa Bulletin - May 2011

May 2011 Visa Bulletin was released today. Little movement for Family-Based categories. For Employment-Based category, EB-3 overall saw some movement in cut-off dates for each country. EB2 is current for all other countries except India and China. EB2-India finally moved after long stall. EB2-China progressed to 01 August 2006. EB1, EB4 and EB5 are still current. Please also read some of the projected movements for each category in coming months.

Family-Based

Family 1st – saw some movement for most countries;

Family 2A – most countries advanced to June 2007; Mexico advanced to January 2007.

Family 2B – world numbers stalled at April 2003; Mexico saw no movement and Philippines advances to 01 March 2000.

Family 3rd – most countries advanced to May 2001; Philippines retrogress to February 1992; Mexico advances to 15 November 1992.

Family 4th – most countries stalled at January or March 2000; Philippines stalled at 08 April1988; Mexico stays at February 1996.

Employment-Based

Employment 1st – still current in all categories

Employment 2nd – 01 July 2006 for India; one week improvement for China (01 August 2006) and current for all other categories.

Employment 3rd – EB3 saw overall movement for each country and category

Employment 4th – still current in all categories

Employment 5th – still current in all categories


VISA AVAILABILITY DURING THE COMING MONTHS

Family-sponsored: The extremely high level of demand during the first few months of FY-2011 resulted in the retrogression of most worldwide cut-off dates in January or February. While most of these cut-offs have begun to advance slowly, heavy demand in the Family First preference has caused a further retrogression for May. At this time it is not possible to predict the rate of forward movement, but some movement is anticipated in most categories for the remainder of the fiscal year.

Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:

Employment Second: Demand by applicants who are “upgrading” their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such “upgrades” are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries. (The allocation of “otherwise unused” numbers is discussed below.)

China: none to three weeks expected through July. No August or September estimate is possible at this time.

India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.

Employment Third:

Worldwide: three to six weeks
China: one to three weeks
India: none to two weeks
Mexico: although continued forward movement is expected, no specific projections are possible at this time.
Philippines: three to six weeks

Cross Chargeability - Use your Spouse's Country of Birth for Green Card

If the principal and derivative beneficiaries were born in different countries, it may be possible to apply cross chargeability principles. This allows individual to expedite his or her green card by using priority date as per their spouse's country of birth. Principle of cross-chargeability can be used for employment-based and family- based green cards.

What is Cross Chargeability?

Visas are usually chargeable to the country of the beneficiary's place of birth. But one basic benefit of immigration to US is that USCIS wants to keep individual's family intact. If one family member were being charged to a country that is over-subscribed, while the other family members in the same preference category were charged to countries that are current, this would result in separation and undue hardship. To remedy this potential problem, the law allows in some situations for the family to elect whichever foreign state is more beneficial. The law seems to limit application to situations where it is necessary to prevent the separation of the spouses or separation of the children and parents. For example, if an Indian citizen is married to Canadian born citizen, he can elect to use ROW as country of chargeability. Law would apply for child as well where he can use his parents country of chargeability. Although vice-versa is not true.

Immigration and Nationality Act [INA 202 (b)(2)]
Rules for Chargeability: if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established for that fiscal year;

As per USCIS- "Under a provision of immigration law known as “cross-charging”, if your spouse was born in a country that is not subject to retrogression, you can “charge” against that country’s visa quota. Please note that your spouse must be born in that country. If she/he became a citizen of that country after being born in a country that is subject to retrogression, you cannot cross-charge to your spouse."


Note: There are exceptions to this rule for some countries (e.g. Kuwait offers citizenship to Original Kuwaiti nationals are those persons who were settled in Kuwait prior to 1920) which allows citizenship only to native people. In this case you may still be able to use cross-chargeabiliy as long as you can reproduce birth certificate issued by a government official from these countries.

Priority Date - How to recapture from previously filed petition ?

Generally speaking, the filing date of the visa petition determines the priority date of the alien beneficiary, and his or her place on the waiting list for an immigrant visa.

Employment Based

Immigrant workers being sponsored for labor certifications or PERM are an exception to above rule; the labor certification filing date with the Department of Labor controls as the priority date.

In the context of employment-based immigration, visa petitions filed under the EB-1, EB-2, or EB-3 categories are entitled to the earliest priority date where a subsequent immigrant visa petition (usually I-140) in any of these categories is submitted and approved, unless the prior petition was revoked due to fraud. However, these priority dates are not transferable to the EB-4 or EB-5 categories, or family-sponsored visa petitions.

Once immigrant petition for alien has been approved, he or she can move to new employment. In order to recapture previous priority date, alien has to start their green card process again with his employer. This involves submission of new PERM for new job to DOL. Once PERM is approved, request to capture previous priority date can be sent to USCIS when filing for new I-140 or during filing I-485. Please note, you will need an approved I-140 to recapture priority date. Old PERM approval is not sufficient. Proof of previously approved I-140 could be send to USCIS in form of copy of approval notice, copy of receipt notice or image capture of approval of case on USCIS website.


Family Based

Recapturing an earlier priority date for a subsequent family-based visa petition is more complicated. Here’s a brief overview of the U.S. family-based immigration system: immediate relative (spouse or unmarried child under 21 years old of U.S. citizen); 1st preference (unmarried child over 21 years old of U.S. citizen); 2nd preference (F2A – spouse and unmarried child under 21 years old of permanent resident, and F2B – unmarried child over 21 years old of permanent resident); 3rd preference (married child of U.S. citizen); and 4th preference (brother or sister of U.S. citizen). It is important to note that there is no category for married children of permanent residents.

Regulations implementing U.S. immigration law provide specifically when priority dates can be recaptured for a family petition. Generally speaking, a beneficiary can recapture an earlier priority date if the petitioner and the beneficiary are the same, the petitioner is filing in the same preference category, and the prior I-130 visa petition was not terminated or revoked. For example, if an unmarried child of a U.S. citizen over the age of 21 years old (1st preference category) marries while the petition is pending, then the beneficiary is automatically converted to the 3rd preference category but they will keep the original priority date. However, if an unmarried child of a permanent resident (2nd preference) marries while the petition is pending, then the petition is automatically revoked as a matter of law because no category exists for permanent residents to petition married children. Any subsequent petition that the permanent resident parent files on that child’s behalf (such as a 3rd preference visa when the parent becomes a U.S. citizen) will entail a new filing (priority) date.

Another complicated situation where priority dates can be recaptured involves the children of unmarried sons or daughters who are the principal beneficiaries of their parents’ petitions filed in the 2nd preference category. If these children (derivative beneficiaries) turn 21 years old, they lose their derivative status and move from the F2A category to F2B. Moreover, the children will require a new immigrant visa petition filed on their behalf. Fortunately, these derivative beneficiaries who “aged-out” will be able to retain the original priority date of their initial petition.

Priority dates directly determine when an individual can immigrate to the United States or adjust their status to permanent residency. As you can see, attempting to recapture an earlier priority date to ensure more timely immigration can be complex. Individuals seeking assistance with recapturing a priority date from a prior petition should consult with knowledgeable and experienced immigration attorneys.

Visa Bulletin - January 2011

January 2011 Visa Bulletin was released on 9th December 2010. As predicted there was no major movement for employment based category. Major movement for the EB-2 employment based category for India and China will be seen in month of June-July 2011, only when unused visa numbers will be available due to spillover from EB2- ROW and EB-1 . Until then one should expect small or no movement in EB-2 category. Eb-3 movement will still be at snail pace for rest of the year. Family Based category would see retrogression for rest of the year.

Family Based :

As per January Visa Bulletin, family categories had seen as much of the advancement of the last two years has been reversed with major retrogression.

"As reported in the December Visa Bulletin (number 27), the cut-off dates for most family preference categories advanced at a very rapid pace during the past two years. Those movements have resulted in a dramatic increase in the level of applicant demand received in recent months. This has required the retrogression of many Family preference cut-off dates for January in an effort to hold number use within the various numerical limits. Further retrogression cannot be ruled out should demand continue at the current levels" (emphasis added)."




Employment Based :

The only good news was a ten month jump for Mexico EB-3 cases.

Employment 1st - still current in all categories.

Employment 2nd - weak movement for India and China; just a two week improvement for China (22 June 2006) and stalled again for India (8 May 2006).

Employment 3rd - modest movement; one month advance for most countries to 22 March 2005; one week advance for China to 15 December 2003; India moves up one week to 1 February 2002. Mexico jumps 10 months to 15 April 2003 and the Philippines jumps a month to 22 March 2005.

Employment 3rd Other Workers – most countries remain stalled at 22 April 2003; India moves up one week to 1 February 2002; Mexico jumps 10 months to 15 April 2003.

Employment 4th - still current in all categories.

Employment 5th - still current in all categories.

Family Based Priority Dates may Retrogress or will be 'Unavailable' for rest of FY 2011

As per recent report by "USCIS Response to the Citizenship and Immigration Service Ombudsman’s 2010 Annual Report", it suggests that all available family-based visas will be used by the end of FY 2010. It is very likelihood that Family Based VIsa Numbers will either retrogress or will be unavailable for rest of the fiscal year 2011.

Please see excerpt from the report below

C. Family-Based Immigration
USCIS has worked extensively to reduce the number of pending I-130s. In January 2009, approximately 1.2 million preference category I-130s were pending. As of August 2010, the number of pending cases stands at less than 350,000 – representing a 70-percent reduction in pending inventory. Because USCIS is working rapidly to eliminate the backlog of pending I-130 petitions, it is imperative, as the CISOMB notes, that petitioners notify USCIS of any address changes. As a point of clarification, USCIS will deny the petition, not terminate it,10 if USCIS does not receive a response to the Request for Evidence (RFE). Because failure to respond to an RFE will result in a denial, it is very important that the petitioner keep USCIS informed of any mailing address changes. USCIS appreciates any assistance the CISOMB can provide in relaying this message to customers.

The CISOMB reported that demand for family-based visas has been low and cautioned that a significant number of family-based visas may go unused in FY2010. Since the release of the Annual Report, however, USCIS and DOS have made significant progress in addressing this issue and anticipate that all available family-based visas will be used by the end of FY 2010.