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December 2015 Visa Bulletin Analysis for Employment-Based (EB) Immigrant Visas

Below is our monthly analysis of the State Department’s Visa Bulletin regarding employment-based immigration. December will be an overall challenging month for Bulletin watchers. The dates for Initial Filing still remain frozen at the dates they became effective on in October. While a lack of movement is always difficult, there is worse news: USCIS has stated that they will not honor the Initial Filing dates at all in December. Aside from this, all but two priority date cutoffs are either making up for lost ground—or doing nothing at all.

First Preference Immigrant Workers (EB-1): Priority Workers

All those who qualify as EB-1 workers continue to have no priority date cut-off. (They are also immediately eligible to petition for permanent residence because no labor certification is required.) The three types of immigrant who qualify as EB-1 workers are “persons with extraordinary ability in the sciences, arts, or business,” “outstanding professors and researchers,” and “multinational managers or executives.”

Second Preference Immigrant Workers (EB-2): “Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability”

To qualify as an EB-2 worker, one must either hold an advanced degree, a baccalaureate degree with at least five years of “progressive experience” in the field one wishes to enter in the United States, or be considered a “person of exceptional ability in the sciences, arts, or business.” Many EB-2 workers have no priority date cutoff. However, the two largest areas, India and mainland China, do.

After hitting highs at the end of the summer, the EB-2 Final Action dates have been struggling to recover from the huge September retrogression. The Chinese date is having extra difficulty, as it fails to move this bulletin. The Indian date moves—but still fails to reach its August levels (let alone its high of May 2009 reached last fall). However, U.S. Department of State “Visa Chief” Charles Oppenheim predicts that the Indian date will make some appreciable advancements over the next couple of months. He is somewhat less optimistic for the Chinese date. Nonetheless, its making some short term improvement is still expected, as the Chinese EB-3 date is ahead of this EB-2 date, which will result in some “downgrade” petitions, which will in turn eventually put EB-2 ahead once again.

Dates for Final Action (Green Card Approval)
November
China (PRC)February 1, 2012
IndiaAugust 1, 2006
December
China (PRC)February 1, 2012
IndiaJune 1, 2007

Dates for Initial Filing
November
China (PRC)January 1, 2013
IndiaJuly 1, 2009
December (INACTIVE)
China (PRC)January 1, 2013
IndiaJuly 1, 2009

So far, the utility of the Initial Filing dates for EB-2 immigrants has been very limited. For the two months that they were active, the vast majority of people who could truly take advantage of them were some applicants that weren’t ready to file their petitions before their dates fell from previous highs, either in September of this year for Chinese applicants or last Fall for Indian applicants. Only a select group of petition beneficiaries were able to obtain significant new benefit opportunities from the new Initial Filing program. These were a few EB-3 upgraders or Indians with Priority Dates in May or June of 2009. Suffice to say, compared with our expectations, the results have been underwhelming.

Third Preference Immigrant Workers (EB-3): “Skilled Workers and Professionals” and “Other Workers”

Third Preference “EB-3” workers are effectively cut into two sub-categories: “Skilled Workers and Professionals” and “Other Workers.” (However, for all areas except for China, both sub-categories share the same date.**) All EB-3 immigrants have priority date cut-offs, though only those from India and China have historically experienced appreciable wait times. However, those from the Philippines joined them several months ago.

This month’s bulletin brings little change to the “Final Action” dates in EB-3. The only significant thing is the fact that the Chinese date has once again overtaken its EB-2 counterpart. The Filipino date is advancing, but it still is far from where it was last Spring. The Indian date continues on its slow-walk through 2004, almost as if the jump to December a few months ago never happened. Lastly, the rest of the world’s date reaches September of this year. Its proximity to the present means that by the time a PERM Certification is granted, EB-3 immigrants should have no additional waiting time (as long as they are not from India, China, or the Philippines).

Dates for Final Action (Green Card Approval)
November
China (PRC)January 1, 2012
IndiaApril 1, 2004
PhilippinesJune 15, 2013
All Other Areas*August 15, 2015
December
China (PRC)April 15, 2012
IndiaApril 22, 2004
PhilippinesAugust 1, 2007
All Other Areas*September 1, 2015

Dates for Initial Filing
November
China (PRC)October 1, 2013
IndiaJuly 1, 2005
PhilippinesJanuary 1, 2010
All Other Areas*September 1, 2015
December (INACTIVE)
China (PRC)October 1, 2013
IndiaJuly 1, 2005
PhilippinesJanuary 1, 2010
All Other Areas*September 1, 2015

Unlike in EB-2, the new set of dates for initial I-485 filing were able to offer immigration benefits to a significant amount of EB-3 filers. This is why it is especially unfortunate for EB-3 immigrants that the Initial Filing dates are inactive.

**Other Workers from China have a Final Action date of August 1, 2006 and an Initial Filing date of January 1, 2007. (However, like elsewhere in the EB categories, this date is inactive and unusable for December.) Compared to its previous performance, the Final Action date appears to be advancing healthily. (Immigrants of all other nationalities have the same priority date cutoff for both EB-3 types, so the two are combined in the chart.)

Certain Special Immigrants (EB-4)

EB-4 is an umbrella category for many disparate and specific sub-categories. They are:

Afghan/Iraqi Translators;Members of the Armed Forces;
Broadcasters;Panama Canal Zone Employees;
Children and Spouses of Deceased NATO-6 employees;Physicians;
Employees of International Organizations;Religious Ministers; and
Iraqis that assisted the United States;Retired NATO-6 employees.

Immigrants that fit any of these descriptions are able to petition for permanent residence without delay (because no labor certification is required). We can determine what applicants stand a good chance of qualifying as an EB-4.

Employment Creation (EB-5)

This category is for immigrant investors. To qualify in most locations, $1,000,000 must be invested, but in “Target Employment Areas” this is cut by half. (These are rural areas or places with unemployment rates at least 1.5 times the national average according to the Bureau of Labor Statistics.) In both cases however, the investment must create or save at least 10 U.S. jobs to ultimately qualify for permanent residence. They can invest directly and run their own businesses, or they can invest with less risk through a “regional center.” We have written several articles on the subject.

Until some months ago, there had never been a cutoff in this category. There is now one for Chinese filers, as had been long predicted. (Those of all other nationalities may ignore this.) Priority date cutoffs affect this category somewhat differently than they do the others. While potential Chinese investors can start the process right away, only those whose I-526 petitions were received by USCIS before December 15, 2013 may obtain EB-5 residence. Unfortunately, this complicates matters a great deal. We have a blog article that provides greater insight on the subject.

The cutoff date has been slowly making its way toward 2014. From October until now, it had been a possibly moot issue for investors already in the U.S., because the Initial Filing date was close to the present, at May 1, 2015. Nonetheless, the feasibility of staying in the U.S. on valid status for the six or seven months between I-526 and I-485 petitions is unclear for many potential EB-5 immigrants, so the inactivity of the Initial Filing date doesn’t pose as much clear inconvenience in this category as in EB-2 or 3.

Successfully filing under one’s most favorable visa category possible can be a daunting process. Contact the Law Firm of Shihab & Associates to ensure that your employment based immigration to the United States goes as smoothly and quickly as possible.

*All other “areas of chargeability” as defined by the State Department

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