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Update on EB-2 Availability

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Update on EB-2 Availability

April 1, 2011

U.S. Department of State has announced significant forward movement in the EB-2 category effective May 1, 2011. We applaud this smart use of "unused" visas in the EB-1 first preference category analyzed by Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division of the State Department. We expect to see the actual visa numbers within the next two weeks.

About the middle of each month, the State Department releases its Visa Bulletin for the following month which announces cut off dates for visas. Currently, the State Department's April Visa Bulletin provides that permanent visas are available for EB-2 Chinese nationals with priority dates of July 22, 2006, and for EB-2 Indian nationals, May 8, 2006. [Generally, EB-2 visas are for employees filling positions requiring at least a MS degree or the equivalent. National Interest Waiver cases also fall under this category.] For the last several years, movement has been very slow in the EB-2 category, with 5 year waiting periods for Indian and Chinese foreign nationals. There are only 140,000 employment-based permanent visas available per year. Mr. Oppenheim just announced to our immigration trade association, the American Immigration Lawyers Association:

"[US]CIS says they have seen a decline in [EB-1] filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those 'otherwise unused' numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all 'otherwise unused' numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates."

While we believe that low filings in the EB-1 First Preference classification results from wrongful denial of eligible EB-1 cases by the USCIS, and have advocated that the USCIS follow the applicable law in this area, we are nonetheless appreciative of the adept number crunching and reasonable result offered by Mr. Oppenheim in the interim.

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