NPZ Immigration Law Blog

Employment-Based Preference Categories

Though discussions with USCIS and the CIS Ombudsman regarding employment-based adjustment interviews are ongoing, DOS does not believe that the impact of this policy change will manifest until well into the second half of the fiscal year due to the large number of pending I-485s at USCIS Service Centers. DOS hopes to gain insight into the impact of the implementation of the employment-based interview requirement on the timing of requests for immigrant visa numbers, which could influence the movement of some employment-based final action dates and require modification of some of the predictions below.

DOS also noted that there has been an increase in the number of employment-based immigrant visa interviews at consular posts over the past few months, particularly in the EB-1 category, and to a lesser extent the EB-2 category, mainly in China. Guangzhou will be processing more than 200 EB-1 cases in December.

EB-1 China, EB-1 India, and EB-2 and EB-3 Worldwide. As previously reported, these categories are expected to remain current for the foreseeable future, at least through the first half of the fiscal year.

EB-2 India. Consistent with DOS’ predictions, EB-2 India will advance less than one month in December to November 1, 2008.

EB-3 India. The final action date for EB-3 India will continue to hold steady at October 15, 2006, for December. This is the result of high visa number usage in October due to a significant advancement of the final action date at the end of FY 2017. Many of the cases that could not be completed in September were finalized and issued a visa number in October. DOS will closely watch demand in this category and determine whether to continue to hold the final action date or whether advancement is possible in January. As noted above, interviews and processing at USCIS field offices is a factor which could influence movement in this category.

EB-2 China and EB-3 China. In December, EB-2 China will advance less than one month to July 1, 2013, and EB-3 China will advance slightly more than one month to March 8, 2014.

EB-3 Philippines. The final action date for EB-3 Philippines will hold steady at January 15, 2016, in December due to demand in this category increasing at a much higher pace than expected. It is unclear whether this spike in demand is temporary or whether it is indicative of a trend of a more sustained increased demand, which was not expected until March or April. DOS will watch this category closely.

EB-5 China. The final action date for EB-5 China (both Non-Regional Center and Regional Center) will advance approximately two weeks to July 15, 2014, in December.

EB-4. In December, EB-4 El Salvador, Guatemala and Honduras will advance one week to November 8, 2015, and EB-4 Mexico will advance just under one month to April 22, 2016.

Family-Based Categories.

Movement in the family-based categories for December remains mostly steady due to greater visibility into demand, and thus, greater predictability. As with EB-3 Philippines, demand for FB-1 Philippines and FB-2B Philippines is increasing significantly and beyond expectations. Both categories will retrogress in December, with FB-1 Philippines retrogressing two years to January 1, 2005, and FB-2B Philippines retrogressing one year to July 1, 2006.

QUESTION: As stated in October, "Special Immigrant Juvenile (SIJ) applicants used over 50% of the annual limit for the EB-4 category, or more than 5,100 visa numbers. Of this number, El Salvador, Guatemala, and Honduras used over 1,100 visa numbers each." How does the 7% per country limitation affect the distribution of the approximately 9,600 visas allocated to the special immigrant category?

ANSWER: Under INA §202(a)(5)(A), if demand is insufficient to use all available visa numbers in an employment-based preference category, the otherwise unused numbers may be made available to other categories without regard to the annual per-country limits. This provision helps to assure that all available employment-based preference numbers are allocated up to the total cap. The application of a final action date for EB-4 El Salvador, Guatemala, and Honduras (plus Mexico and India later in the year) ultimately allows their number use to exceed the 7% limit, while allowing all other countries to be processed on a "Current" basis without exceeding the worldwide annual limit.

This concept originated in the American Competitiveness in the 21st Century Act (AC21) and has become relevant to the increased overall usage of EB-1 visa numbers by China and India in recent years. In years prior to the time that demand forced the imposition of a final action date for EB-5 China and for EB-4 El Salvador, Guatemala, Honduras and Mexico, China and India EB-1 and EB-2 benefited from about 10,000 to 15,000 "otherwise unused numbers" annually. The surge in EB-4 and EB-5 demand leaves 5,000 to 10,000 fewer "otherwise unused numbers" available to fall up to EB-1 and EB-2 than had been the case previously. China and India EB-1 each receive up to 2,803 visas per year according to their per country limit. Due to the availability of otherwise unused numbers, last fiscal year, EB-1 China and EB-1 India used approximately 6,300 and 13,000 visa numbers, respectively.

If you should have any questions or need more information about the way that the U.S. Immigration and Nationality Laws may impact you, your family, your friends or your colleagues, please feel free to contact the U.S. Immigration and Nationality Lawyers at the NPZ Law Group – VISASERVE – U.S. Immigration and Nationality Lawyers by e-mailing to us at info@visaserve.com or by calling us at 201-670-0006 (x107) or by visiting our Law Firm’s website at http://www.visaserve.com