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Retrogressed EB-2 Numbers Predicted to Open Up in October, Except for Indian and Chinese Nationals

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Retrogressed EB-2 Numbers Predicted to Open Up in October, Except for Indian and Chinese Nationals

June 28, 2012

Corporate immigration counsel are busy this week assisting many EB-2 employees in filing adjustment of status applications to meet the June 30 cutoff deadline before visa retrogression again rears its ugly head. In this hectic time, we appreciate the candor displayed by Charlie Oppenheim, Chief of Visa Control at the Department of State, in explaining this rollercoaster ride of visa availability over the past few months. Rest assured, Mr. Oppenheim, that employers share your frustration — but for different reasons.  A wait time of five to eight years or more for foreign-born professionals to obtain permanent residence is simply untenable. Congress not only needs to eliminate the per-country cap on green cards, but also needs to raise the quota on employment-based visas, which currently stands at an insufficient 140,000 visas per year.

In a June 19 meeting with AILA liaisons, Mr. Oppenheim pinpointed several factors that contributed toward the volatile past few months for visa numbers, and also offered predictions for the next several months. According to Mr. Oppenheim, EB-2 numbers worldwide should become current once again in October 2012, the start of the government’s new fiscal year. Sadly, for Chinese and Indian nationals, EB-2 numbers are to retrogress to 2007.
Other highlights of Mr. Oppenheim’s analysis and predictions:
•    In October 2012, the EB-2 cutoff dates for Chinese and Indian nationals, which are currently “unavailable,” will move to August or September 2007 (China may fare slightly better than India). 
•    We should expect little forward movement until spring 2013, due to several thousand EB-2 adjustment of status cases that are already in the pipeline.  
•    If the USCIS approves many pending adjustment of status cases by the end of June, there may be no visa availability for EB-2 worldwide for the rest of this fiscal year, which ends September 30, 2012.
Mr. Oppenheim traced back some of the fallout to the huge volume of adjustment of status filings from summer 2007, as well as new EB-2 PERM labor certification filings seeking priority dates from earlier-filed EB-3 PERM applications. He also pointed to much pressure from the USCIS to open up visa numbers during this past fiscal year. Each month, the USCIS tries to assess upcoming visa demand while receiving I-140 petitions. As we have learned from Mr. Oppenheim’s analysis, however, these matters are more of an art than an exact science. 

WSM will continue to rigorously monitor visa availability for our clients, and provide updates as we receive new information. 

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