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February 2016 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. February will see some slow but steady advancement in most categories, with a few larger advancements.

EB-1 applicants continue to enjoy no priority cut-off date and are current for all areas.

For EB-2 category visas, the Indian Final Action Dates have continued to leap forward, this time by seven months. The Chinese date has finally progressed, but only by one month. All other areas are current.

For EB-3 visas, Final Action Dates have progressed three months for China, one month for India, and two months for the Philippines. All other areas remain at October 1, 2015.

For EB-4 visas, priority dates remain current for all areas. Thankfully, Congress passed legislation in December extending the EB-4 and EB-5 visa programs.

For EB-5 visas, all areas remain current except for China, with a Final Action Date of January 15, 2014 and an Initial Filing Date of May 1, 2015.

For applicants seeking to make an adjustment of status, USCIS has noted on its web site that if it determines that there are more immigrant visas available for the fiscal year than there are known applicants, then applicants may use the "Dates for Filing Visa Applications" charts instead of the “Application Final Action Dates” charts. Applicants may check which chart they may use at: www.uscis.gov/visabulletininfo. As of December 14, 2015, all employment-based filings must use the “Application Final Action Dates” charts. All family-based applications may use the "Dates for Filing Visa Applications" charts.

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.

For Final Action Dates, the Chinese date has finally moved forward, but just by one month. The Indian date on the other hand, has leapt forward seven months. The Indian date has been experiencing great advancements in recent months in the EB-2 category.

Dates for Final Action (Green Card Approval)

February

China (PRC)

March 1, 2012

India

August 1, 2008

Dates for Initial Filing

February

China (PRC)

January 1, 2013

India

July 1, 2009

Once again, there has been unfortunately no progress for Initial Filing Dates in this category. So far, the utility of the Initial Filing Dates for EB-2 immigrants has been very limited.

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.” (For all areas except China, both sub-categories share the same date.**)

All EB-3 immigrants have priority date cut-offs, however those from China, India, and the Philippines are facing significant wait times.

EB-3 Final Action Dates have progressed three months for China, one month for India, two months for the Philippines. For all other areas, the Final Action Date remains stuck in October 2015.

Dates for Final Action (Green Card Approval)

February

China (PRC)

October 1, 2012

India

June 15, 2004

Philippines

January 8, 2008

All Other Areas*

October 1, 2015

Dates for Initial Filing

February

China (PRC)

October 1, 2013

India

July 1, 2005

Philippines

January 1, 2010

All Other Areas*

January 1, 2016

Initial Filing Dates have not advanced this period for any country whatsoever. This is regrettable, because Initial Filing Dates can offer immigration benefits to a significant amount of EB-3 filers.

**Other Workers from China have a Final Action Date of December 22, 2006, and an Initial Filing Date of January 1, 2007. (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, except for EB-4 Certain Religious Workers, 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.

The good news, is that Congress passed legislation in December extending the EB-4 Certain Religious Workers category, and priority dates remain current in this category for all areas.

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 date in this category. Now, only Chinese applicants have one. 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 January 15, 2014 may obtain EB-5 residence. This period only sees a one week improvement, and this creates a complicated situation. We have a blog article that provides greater insight on the subject.

The cutoff date has finally reached 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. However, this period the Initial Filing Date has retrogressed two weeks, back to May 1, 2015. Because the feasibility of staying in the U.S. on valid status for between the filing of the I-526 and I-485 petitions is unclear for many potential EB-5 immigrants, the iretrogression of the Initial Filing Date doesn’t pose as much clear inconvenience in this category as in EB-2 or 3.

Thankfully, Congress has enacted legislation in December renewing the EB-5 program this fiscal year.

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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