The Department of State (DOS) Visa Bulletin for October 2014 outlining immigrant visa availability has been released. The DOS has indicated that retrogression is imminent in the employment-based second preference category (EB2) for India. In November, the EB2 India category will likely retrogress to early 2005. Individuals with current priority dates should ensure their adjustment of status applications are filed with USCIS by the end of October 2014. In addition, immigrant visas in the EB2 India category are currently “unavailable” as the USCIS has already reached the maximum number of EB2 immigrant visas available for India for Fiscal 2014. During September, the USCIS will continue to accept and process EB2 India cases with priority dates earlier than May 1, 2009 but cases will not be approved until the start of the new Fiscal Year on October 1, 2014.
The October Visa Bulletin continues to indicate limited forward movement in one of the employment-based second preference categories. The EB2 China category moved forward approximately five weeks from October 8, 2009 to November 15, 2009. The EB2 India category remains at May 1, 2009 while the EB2 category for all other countries, including Mexico and the Philippines, remains current.
There was also forward movement in all of the employment-based third preference categories (EB3). The EB3 category for India moved from November 8, 2003 to November 15, 2003. The EB3 category for China moved forward from November 1, 2008 to April 1, 2009. All other EB3 categories, including Mexico and the Philippines, moved forward six months from April 1, 20011 to October 1, 2011.
The employment-based first preference category (EB1) continues to remain current for all countries.
The priority date is effectively one’s place in line to immigrate. The priority date is established when a PERM application is filed with the Department of Labor, or for those cases not requiring a PERM application (typically EB1 cases and EB2 applications in the national interest), when the I-140 is filed with the USCIS. For family-based immigration cases, the priority date is established when the I-130 is filed with the USCIS. Individuals with priority dates earlier than the listed cut-off date on the bulletin are eligible to submit applications for adjustment of status (or consular visa applications) or if their applications are already pending may have their cases adjudicated. If ones priority date is not “current” neither agency may accept the case for processing nor adjudicate a pending case because the “visa is not available” if the priority date is not “current.”
Note that DOS looks at your country of birth in determining whether you are a national of a given country, not your country of citizenship. It is country of birth (yours or your spouse) that determines which country to which you are “charged” or “counted” against for purposes of permanent residency. For example, if you were born in India but have since become a citizen of Canada, you are still charged against India and you have to look at advancements for India rather than worldwide numbers. As another example, if you (principal applicant on an employment based process) were born in India but you are married to a person who was born in Canada, both of you can be charged against Canada. This latter example is called “cross-chargeability.”
For general information on visa retrogression, please see our FAQ on this subject. For more information on the Visa Bulletin and country quota movements, including information about movement in the Family-Based Quotas, please see our DOS Visa Bulletin and Quota Movement page, which includes detailed nationality-specific charts of quota movement since 1996. Please also note that while Congress is contemplating new immigration legislation it is far too early to look at the potential changes and their impact on the immigration system. Until new legislation is actually passed and becomes law, we can only look to the current laws for how cases will be processed.