November 2016 Visa Bulletin – EB-2 India and China Advance Notably

The U.S. State Department has just released the November 2016 Visa Bulletin which is the second Visa Bulletin for the new FY2017 fiscal year.  The headline in the upcoming month’s Visa Bulletin is the fact that EB-2 India and China advance notably while the forward movement in most of the other categories is fairly minor.  Additionally, EB-3 China continues to have a more favorable cutoff date than EB-2 China which creates favorable conditions for EB-2 to EB-3 China downgrades.

Summary of the November 2016 Visa Bulletin – Employment-Based (EB)

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates. Please see the section below.

Summary of the November 2016 Visa Bulletin – Family-Based (FB)

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates. Please see the section below.

USCIS Clarifies Its Position on Accepting I-485 Applications with Current “Filing” Date

The introduction of the “Filing” cutoff date in the October 2015 Visa Bulletin generated, initially, a lot of excitement and hope in that USCIS will be able to accept early I-485 filings. However, the reality has been very disappointing.

Additionally, USCIS has added another wrinkle causing additional delay and confusion. On October 15, 2015, USCIS announced that starting with the November 2015 Visa Bulletin, they (in addition to the Department of State) will be evaluating whether there are more immigrant visas available for a fiscal year than there are known applicants for such visas based on the dates published in that month’s Visa Bulletin. This means USCIS will agree to accept the Visa Bulletin “Filing” dates for the purpose of allowing I-485 applications to be filed if (and only if) USCIS determines that there are more available visa numbers than there are known (we assume based on a number of I-485 pending cases) applicants.

According to USCIS, they will be making a determination within a week of the Visa Bulletin issuance and they will be posting their decision it to their website. USCIS will simply state whether they will honor the “Filing” dates or the “Approval” dates for the purpose of accepting I-485 applications. USCIS confirms, however, that their default position is that unless indicated otherwise, the “Approval” dates will control who can file I-485 applications.

As a result, applicants who may appear to be current under the “Filing” cutoff dates in a given Visa Bulletin would still need to wait (it appears for another week) for USCIS to announce separately whether they will honor the “Filing” cutoff date for I-485 filing acceptance. Needless to say, this creates another level of delay and confusion. Our office will do our best to provide updates and explanations on our website and newsletter but we are happy to analyze individual cases as well.

Final Action Dates for EB-3 China Ahead of EB-2 China – Favorable Conditions for Downgrading

Clients and readers who are interested in EB China will note that EB-3 China has a more favorable cutoff date than EB-2 China by about one year (EB-3 China is at April 15, 2013 while EB-2 China is July 15, 2012).   This is similar to what happened in 2014 when EB-3 China was more favorable and when our office handled many cases for Chinese nationals who are EB-2 applicants and who were able to downgrade to EB-3 and file their I-485 adjustment of status.

Here’s how this can work:  in some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

Current “Date for Filing Applications”?

Our office stands ready to assist in the applicable process to take advantage of the significant restructuring in the way the cutoff dates are determined and published.  There are many applicants across many of the employment and family categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the November 2016 Visa Bulletin. Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.