An End to the China EB-2 to EB-3 Downgrade Phenomenon (at least for FY2015). In April 2015, the EB-3 China cut-off date (currently October 22, 2011) will retrogress more than nine months to January 1, 2011. As a result, EB-3 China will return to its more “natural” position and will be three months earlier than EB-2 China (April 1, 2011). This will effectively end the EB-3 downgrade phenomenon. For months, the cut-off date for EB-3 China has been later than EB-2 China due to insufficient EB-3 demand. As a result, EB-2 China beneficiaries filed EB-3 I-140 petitions in an attempt to take advantage of the earlier EB-3 cut-off date. This surge in demand required a correction to EB-3 China, resulting more than nine months of retrogression.
In November 2014, Charlie predicted that a correction would be required as early as February 2015. EB-3 China beneficiaries were fortunate that this phenomenon lasted two months longer than anticipated. You should carefully review your EB-3 China case with a priority dates between April 1, 2011 and October 22, 2011, and file it before the end of this month when the window will close. You should also be sure to appropriately manage the expectations of your EB-3 clients by reminding them that filing now will not result in final action on their case in the foreseeable future.
Charlie Oppenheim at the DOS continues to monitor EB-2 China, which will advance seven months to April 1, 2011 in April. Charlie notes that additional forward movement in May remains possible if sufficient demand for EB-2 China does not materialize at the beginning of April. As was the case in EB-3 China, some corrective action may be required later in the year should there be excessive demand based on the movement of the EB-2 cut-off date.
EB-5 China. This month Charlie Oppenheim further refined his earlier prediction on EB-5 China. He anticipates that the retrogression will occur no later than June.
EB-2 India. After advancing 16 months in March 2015, EB-2 India will advance another eight months in April, to September 1, 2007. Members can expect EB-2 India to continue to advance at a steady pace for another couple of months before slowing or holding toward the end of the fiscal year.
EB-3 Worldwide, Mexico, and Philippines. EB-3 Worldwide, Mexico, and Philippines will all advance another four months to October 1, 2014. As April 1 marks the beginning of the second half of the federal fiscal year, the Visa Office wants to ensure that all numbers are used. Charlie predicts there may be another big advancement in these categories in May.
Additional Questions Asked-of and Responded to by Charles Oppenheim at the U.S. Department of State:
QUESTION: What will it take for there to be movement in EB-3 India?
RESPONSE: At this time, there is nothing which can be done to improve the India EB-3 cut-off date situation unless there is a legislative change.
The amount of pre-adjudicated India EB-3 demand versus the annual limit prevents more than a one or two week monthly movement of this cut-off date. For example, at this time, more than 9,100 India EB-3 applicants with priority dates earlier than January 1, 2005 (alone) have already been reported to the visa Office and the FY2015 annual limit is approximately 2,875.
QUESTION: Do you foresee EB-3 Worldwide becoming current anytime soon? If so, what would that mean for EB-3 India?
RESPONSE: Charlie does not anticipate that EB-3 Worldwide will become current anytime soon but the cut-off date could easily reach 2015. If the Worldwide EB-3 category ever becomes current then (and only then) any “otherwise unused” numbers could be made available to the India EB-3 category, which has the earliest EB-3 cut-off date.
QUESTION: In his Executive Actions on Immigration, President Obama directed DOS and USCIS to work on a system to alleviate the visa backlogs. Have any steps been taken to effectuate the intent of the President?
RESPONSE: Yes. One example is having advanced the cut-off dates at a more rapid pace, and much earlier, than in previous years.