October 2020 Visa Bulletin – Major Movement for EB-2 and EB-3 India and China

The U.S. State Department has just released the October 2020 Visa Bulletin which is the first Visa Bulletin for the FY2021 fiscal year. The headline in the upcoming month’s Visa Bulletin is the major forward movement in employment Dates for Filing and smaller but still notable forward movement in the Final Action dates. There is no movement at all in the family-based dates.

Breaking Update: USCIS has announced that they will use the “Filing Dates” section of the Visa Bulletin for purposes of determining who can file I-485 during the month of October.

Which India and China Employment-based Applicants Are Eligible to File I-485 in October?

By using the Filing Dates, USCIS will allow the following India and China applicants to file I-485 in the month of October 2020:

India

• EB-1 India with PD before September 1, 2020;
• EB-2 India with PD before May 15, 2011;
• EB-3 India with PD before January 1, 2015.

China

• EB-1 China with PD before September 1, 2020;
• EB-2 China with PD before October 1, 2016;
• EB-3 China with PD before June 1, 2018.

Summary of the October 2020 Visa Bulletin – Employment-Based (EB)

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

Summary of the October 2020 Visa Bulletin – Family-Based (FB)

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

First Visa Bulletin for Fiscal Year; Major Forward Movement But Only for the Employment Filing Dates

The October 2020 Visa Bulletin is the first for the 2021 fiscal year (FY2021) which in past years has meant that the government annual quotas for immigrant visas are reset and often we see notable changes in the cutoff dates.

The October 2020 Visa Bulletin shows notable advancement in the “Final Action” dates for some of the retrogressed categories and we are seeing major forward movement in the Dates for Filing. Please note that it is up to USCIS (we expect their announcement over the coming days) to determine whether they will accept the Final Action or the Dates for Filing for I-485 filing purposes in the month of October.

EB-3 India and China Filing Dates Appear to Move More Aggressively than EB-2 – Possible Opportunity for Downgrading from EB-2 to EB-3

One trend that we see in the 2020 October Visa Bulletin (together with prior Visa Bulletins) is that EB-3 India and EB-3 China appear to be advancing more aggressively relative to EB-2 India and EB-2 China, respectively.     For example, in Final Action, EB-3 India moves by 3.5 months (7 weeks for EB-2 India) while EB-3 China moves forward by 5.5 months (EB-2 China advances by 6 weeks). This is even more dramatic under the Dates for Filing category where EB-3 India advances by about 5 years while EB-2 India advances by 2 years.

Both EB-3 India and China have more advanced cutoff date than EB-3 which means that EB-3 is more favorable category to be in and this may allow an opportunity for certain EB-2 India or China applicants to downgrade to EB-3 and file I-485 based on a current priority date.

We have put together a guide on understanding the EB-2 to EB-3 downgrading process, including who may benefit from it and how to go about the process.    We invite you to review our guide and also to contact us if we can be of any help.

Why Is There Such Major Forward Movement in Employment and Not Much Movement in Family Cutoff Dates?

As our clients and readers are aware, USCIS field offices have been closed and are only gradually starting to reopen for I-485 processing. Similarly, U.S. Consulates abroad have been closed for most services as well. This means that fewer visa numbers were used by the field offices and consulates.

Additionally, we are seeing a drop off in the demand for visa numbers as a result of the worsening economic conditions as some employers and immigrant applicants delay or pull back their applications.

As a result, it is expected that FY21, the allocation of employment-based visa numbers to be high. This is because the law requires unused family-based visa numbers from the immediate prior fiscal year to be added to the employment-based allocation (and vice versa). We saw a significant employment-based number usage in FY20 before COVID-19 while we also saw limited family-based visa number usage.

FB-2A Remains Current for All Countries But Not For Much Longer – Opportunity to File I-485 Adjustment of Status (Assuming USCIS Will Allow It)

The Family-based Second Preference (FB-2A) category remains “Current” for October.   This action has been taken in an effort to generate an increased level of “demand” or number of filings.     It should be noted that the the Department of State is confirming that FB-2A will not remain Current for much longer and a cutoff date and a retrogression is expected over the next few months.

FB-2A category is for “Spouses and Children (generally under 21 years of age) of Permanent Residents”

This means that FB-2A applicants, especially those who are in the U.S. on valid status, should consider filing for I-485 Adjustment of Status as soon as possible in the event there is a cutoff date introduced in the following month’s Visa Bulletin.   Note that because the cutoff date is “Current”, it is possible to file a brand new FB-2A where the I-130 immigrant petition and the I-485 adjustment of status are filed concurrently.    So this is an opportunity to file I-485 not only for existing but also for new FB-2A cases.

FB-2A applicants who are pursuing the NVC/Consular may still consider completing their applications so that the U.S. Consular sections can complete the interview and the immigrant visa approval process as soon as possible.

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 October 2020 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.