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January 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. January 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.

For EB-2 category visas, the Indian final action date has leapt ahead by eight months, while all other countries have not advanced.

For EB-3 visas, final action dates for all countries have progressed, in varying lengths of time.

Meanwhile, for EB-4 and EB-5 applicants, an expiration date of December 11, 2015 looms for EB-4 Certain Religious Workers and EB-5 Regional Center visas (I5 and R5). Until Congress passes new legislation granting an extension, no visas will be granted and no adjustments of status will be made after December 10, 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. 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.

Once again, the Chinese date has failed to move forward. The Indian date, on the other hand, has pressed forward eight months to February 1, 2008.

Dates for Final Action (Green Card Approval)

January

China (PRC)

February 1, 2012

India

February 1, 2008

Dates for Initial Filing

January

China (PRC)

January 1, 2013

India

July 1, 2009

There has been unfortunately no progress for initial filing dates in this category this period. 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.

January’s bulletin brings advancements to the “Final Action” dates in EB-3 for every country. The Chinese and Filipino dates have jumped ahead 2 ½ and 3 months, while the Indian date has crept ahead by three weeks. All other countries have advanced by one month. This means that for all other countries, there is no additional waiting time once a PERM Certification is granted.

Dates for Final Action (Green Card Approval)

January

China (PRC)

July 1, 2012

India

May 15, 2004

Philippines

November 1, 2007

All Other Areas*

October 1, 2015

Dates for Initial Filing

January

China (PRC)

October 1, 2013

India

July 1, 2005

Philippines

January 1, 2010

All Other Areas*

January 1, 2016

Initial filing dates have advanced four months for all countries of the world except China, India, and the Philippines. For these countries the dates remain unchanged. Unlike in EB-2, 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 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, 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 EB-4 Certain Religious Workers category is set to expire on December 11, 2015. These visas will not be issued, or adjustments of status made, after midnight December 10, 2015. All immigrants in this category must be admitted into the U.S. before this time. Any visas issued will only have a validity date of December 10, 2015. Congress is currently considering an extension of the EB-4 Certain Religious Workers category, but it is uncertain when this will occur. If legislative action is taken, these cut-off dates will immediately become "Current.”

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 January 8, 2014 may obtain EB-5 residence. While is an improvement by about 3 weeks, this still 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, at May 15, 2015. This date has not changed since last month; nonetheless, the feasibility of staying in the U.S. on valid status for the seven or eight 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.

The greatest concern right now, is that EB-5 Regional Center visas (I5 and R5) also face an expiration date on December 11, 2015, much like the EB-4 Certain Religious Workers category. Until Congress passes an extension, I5 and R5 visas will be issued only until the close of business on December 11, 2015. They will be issued for the full validity period. After December 11, 2015, no I5 or R5 visas will be issued overseas, and no final actions will be taken on adjustment of status cases.

If Congress does take legislative action, then these cut-off dates will immediately become "Current" for January, (except for China (PRC) I5 and R5 categories which would be subject to a January 8, 2014 cut-off date.

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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