November 2017 Visa Bulletin – Extremely Slow Forward Movement; EB-3 China Favors Downgrading

The U.S. State Department has just released the November 2017 Visa Bulletin which is the second Visa Bulletin for the FY2018 fiscal year. The headline in the upcoming month’s Visa Bulletin is the anemic forward movement in EB-2 India/China and no movement in EB-3 India.  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 2017 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 2017 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.

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 (again) a more favorable cutoff date than EB-2 China by about 7 months (EB-3 China is at February 1, 2014 while EB-2 China is at June 15, 2013).    This is similar to what happened in 2014 and then in 2016 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:  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.    It is possible to use a PERM which has already expired if it has been used in support of a previous I-140 and in many cases it is even possible to file a new EB-3 I-140 filing under premium processing.   As a result, if the premium processing request is accepted, it may be possible to obtain an approved downgraded and current EB-3 I-140- within a few weeks, and then promptly seek to file I-485 adjustment of status which provides additional benefits such as independent work authorization (for family members too) plus AC21 job portability after 180 days.

We caution our clients and readers, especially the China employment-based applicants, that the historic average time for an EB-3 China priority date to become current and for a green card under this category to be approved is still 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 may still take slightly less time to approve.   However, for many applicants, the benefit of early I-485 filing may be worth it to go through the EB-3 “downgrade” process.

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?

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 2017 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.