August 2021 Visa Bulletin – Forward Movement for EB India with Anticipated Window for EB-3 Downgrades and I-485 Filings

The U.S. State Department has just released the August 2021 Visa Bulletin which is the eleventh Visa Bulletin for the fiscal year. The headline in the upcoming month’s Visa Bulletin is the continuing significant forward movement for EB-3 India and the anticipated additional forward movement for EB India over the coming months, with a possible “Filing Dates” use in October/November 2021 for I-485 filings. We also share preparation pointers for applicants who are close to having a current priority date.

Summary of the August 2021 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 August 2021 Visa Bulletin – Family-Based (FB)

USCIS will determine and publish separately, a few days after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.

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

As our clients and readers are aware, USCIS field offices were closed for several months in 2020 and have been gradually adding capacity over the past months. Similarly, U.S. Consulates abroad have been closed for many non-emergency services as well. This means that fewer visa numbers have been used by the field offices and consulates.

Additionally, we also saw a drop off in the demand for visa numbers in 2020 as a result of the uncertain economic conditions in 2020 as some employers and immigrant applicants delayed or pulled back their applications during the height of the COVID-19 pandemic.

As a result, it is expected that 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).

Continued Aggressive Forward Movement for EB-2 and, Especially, EB-3 India Suggests Upcoming Opportunities for EB-3 Downgrades and I-485 Filings

We have seen aggressive forward movement in the EB India cutoff dates over the last few months, especially for EB-3 India which has been moving much faster than EB-2 India. We also anticipate additional forward movement in EB-3 India over the coming months. Additionally, historically, USCIS has allowed the use of the “Filing Dates” for purposes of I-485 filings in the first few months of the fiscal year (October, November, and sometimes in December). This means that there may be another opportunity to file standalone I-485s or, for many EB-2 applicants, an opportunity to file an EB-3 I-140 downgrade together with an I-485 adjustment of status.

Specifically, during July and August 2021 and likely for the following several months, both EB-3 India and China have more advanced cutoff date than EB-2 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. Again, we expect this to continue for the next few months.

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.

How to Prepare for Possible I-140 EB-3 Downgrade and I-485 Application Filing Over the Coming Months

Our office is starting to get very busy with prospective employers and employees who are looking to prepare and take advantage of the anticipated window for EB-3 I-140 downgrades and I-485 applications.   We would like to share some pointers and common questions.

Should I File EB-3 I-140 Downgrade Proactively Before the PD is Current or Wait Until the PD is Current and Then File I-140 EB-3 Downgrade and I-485 Concurrently?

Scenario One – File I-140 EB-3 Downgrade Proactively

Option one is to file I-140 EB-3 downgrade proactively, possibly seek to get it approved faster by using premium processing (this is not guaranteed to work) and then, when the priority date under EB-3 becomes current, hopefully in the next few months, file the I-485 based on the approved or pending I-140 EB-3 downgrade petition.   While this is possible and it is always good to be proactive, there are two cautionary notes. 

First, it is not guaranteed that the EB-3 I-140 downgrade can be filed with premium processing – a case may have to be filed with regular processing, get receipt notice, and then seek to upgrade to premium.   This is because USCIS does not always grant premium processing when an I-140 is filed without the original “blue paper” PERM Labor Certification which is the case for EB-3 downgrades.   

Second, at this time we do not know if the case’s priority date will become current under EB-3 this fall.  Expectations are for significant forward movement but we do not know for sure if this will be the case and by how much. There is some risk that an applicant will end up with an EB-3 I-140 petition but without having a current priority date which means having to wait longer to file I-485.

Scenario Two – Wait for Current PD and then File I-140 EB-3 Downgrade and I-485 Application Concurrently

The second scenario is to wait until we see the Visa Bulletin show that the existing EB-2 priority date will be current under EB-3 and at that time file concurrently the I-140 EB-3 downgrade and the I-485 adjustment of status application.   This is the approach we took for many of the October-December 2020 cases when the dates advanced and this process worked very well.  After filing with the EB-3 downgrade I-140 with regular processing initially (with I-485), it may be possible to upgrade to premium after some time.

While every case and situation are different, overall, our recommendation is to file I-140 and I-485 only when it is certain that the priority date allows I-485 filing.  In the meantime, applicants who may be close to being current should consider discussing plans with their employers (for the EB-3 I-140 downgrade) and then starting to prepare the I-485 requirements (birth certificates, etc.) to ensure smooth process.    Also, attorneys tend to get busy and booked fast during this kind of periods so we recommend making these arrangements early as well.

Pending I-485 Applications: What Does the Forward Movement Mean for Many October/November 2020 I-485 Filings (Especially for India Applicants)?

During the period of October-December 2020, many Indian nationals were able to file a I-485 Adjustment of Status either under EB-2 or EB-3 (including downgrades) based on the favorable cutoff dates during these months and the fact that USCIS accepted the “Filing” dates for I-485 filing purposes.

Now, approximately six months later, many of these applications are seeing “current” priority dates under the Final Action category which suggests that I-485 approval is possible. However, we caution that I-485 applicants in this scenario should not immediately expect I-485 green card approval.

Backlog of I-485 Applications Means Slow Processing

First, given the enormous wave of I-485 filings in October-December 2020, USCIS is facing a huge backlog in the initial processing of these I-485 applications. Some cases are just getting biometrics scheduled now, with EAD/AP processing taking 6-8+ months. Many cases were filed without I-693 medicals as well and this means that such cases will also need to either get an interview, if needed (and a request to bring the medicals) or a request for evidence to submit the required medicals. As a result, the vast majority of EB-2 or EB-3 cases filed in late 2020 are not ready for adjudication even if the priority date may be current under Final Action.

Medical Exam – Should I Submit Proactively or Wait for RFE/Interview?

As noted above, many I-485 applications were submitted without I-693 medicals which is completely acceptable and a smart way to prepare and submit an I-485 application promptly. But since I-693 medicals are required for approval of a case, USCIS is now in the process of issuing requests for evidence (RFE) and asking for medical exams for many cases.

One extremely common question has been, “Do I have to wait for RFE to submit the medicals or can I just mail them to USCIS?”. First, the medical exam is valid for submission to USCIS for 60 days after the doctor signs it and then, once timely submitted to USCIS , it is valid for 2 years.

While it may be a good idea to seek out doctors and gather vaccination records in anticipation of a “medical exam RFE”, we caution that completing the medical exam too early before submitting to USCIS will cause the medicals to expire (if not timely submitted) and they will have to be redone.

As far as sending the medicals to USCIS without being asked to do so, we caution that this approach is not without risk. First, USCIS generally does not like when applicants send documents relating to a case without being asked. At the same time, there is a risk that a piece of mail sent to USCIS may not be routed properly and eventually find its way to a case. For example, USCIS is often moving cases between services centers and field offices and it may be hard to know with certainty where a I-485 case file is located at an given time so that the medicals can be sent to that center.

We generally recommend waiting to submit the medicals to USCIS only when asked to do so and under clear instructions on where to send. This is a much more efficient way to make sure that the medicals are sent to a specific request and to a specific USCIS office address. The risk of the medicals getting misplaced, delayed, or lost is, in our experience, extremely small.

I am October 2020 I-485 Applicant and My Priority Date is Current Under Final Action – What Should I Do Now?

As noted above, for many October-December 2020 I-485 applicants it is too early in the I-485 adjudication process to expect USCIS to have completed the review of an I-485 filed just a few months ago. This is especially true given the current backlog and delays at USCIS.

However, many of the late 2020 I-485 applications are simply not ready for adjudication yet so even if there is a current priority date under Final Action, not many I-485 applicants should expect an imminent approval in the month of August. As a note, the approval of the EAD/AP is not related to a current priority date and these applications should be approved in due course regardless of whether the priority date is current.

FB-2A Remains Current for All Countries – Opportunity to File I-485 Adjustment of Status

The Family-based Second Preference (FB-2A) category remains “Current” for this month.   This action has been taken in an effort to generate an increased level of “demand” or number of filings.   

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.  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 this month’s 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.