The Department of State (DOS) Visa Bulletin for December 2015 outlining immigrant visa availability has been released. As we previously posted, DOS and the USCIS announced their combined revisions to implement part of the November 2014 executive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson. These changes were first seen in the October 2015 Visa Bulletin, which was first published on September 9, 2015, and later amended on September 25, 2015.
USCIS continues to accept and adjudicate cases that are current—this is now referred to as “Application Final Action Dates for Employment-Based Preference Cases” (“Final Action”). USCIS also started accepting cases using a second cut-off date scheme which represents priority dates that are not quite current yet, called “Dates for Filing of Employment – Based Visa Applications” (“Date for Filing”). However, USCIS determines each month whether the earlier “Dates for Filing” chart may be used for that month. Unless USCIS specifically permits the “Date for Filing” chart to be used in a given month, then the “Final Action” chart will be used to determine when adjustment of status applications can be filed. USCIS publishes information on which chart may be used for filing applications to adjust status on their website each month.
On November 13, 2015, USCIS published on its website that the “Final Action” chart must be used for the December 2015 Visa Bulletin, and not the “Date for Filing” chart, as follows:
Application Final Action Dates for Employment-Based Preference Cases:
|Employment-Based||All Chargeability Areas Except Those Listed||CHINA – mainland born||INDIA||MEXICO||PHILIPPINES|
|Certain Religious Workers||C||C||C||C||C|
|5th Non-Regional Center (C5 and T5)||C||15DEC13||C||C||C|
|5th Regional Center (I5 and R5)||C||15DEC13||C||C||C|
The employment-based second preference category (EB2) for China retained a final action date of February 1, 2012 in the November and December 2015 Visa Bulletins. However, the final action date for India moved forward quite a bit from a final action date of August 1, 2006 in the November 2015 Visa Bulletin to June 1, 2007 in the December 2015 Visa Bulletin. The EB2 category for all other countries, including Mexico and the Philippines, remains current.
There was forward movement in all of the employment-based third preference categories (EB3) final action dates. The EB3 category for India continues to inch forward slightly another few weeks from a final action date of April 1, 2004 in the November 2015 Visa Bulletin to April 22, 2004 in the December 2015 Visa Bulletin. The EB3 category for China also moved forward, albeit by a few months, from a final action date of January 1, 2012 in the November 2015 Visa Bulletin to April 15, 2012 in the December 2015 Visa Bulletin. The EB3 category for the Philippines also moved forward quite a bit by a couple months from June 15, 2007 in the November 2015 Visa Bulletin to August 1, 2007 in the December 2015 Visa Bulletin. This continues on a positive a positive trend given that the EB3 category for the Philippines had become unavailable in the July 2015 Visa Bulletin. All other EB3 categories, including Mexico, moved forward from a final action date of August 15, 2015 in the November 2015 Visa Bulletin to September 1, 2015 in the December 2015 Visa Bulletin.
There was also movement in the employment-based fifth preference categories (EB5, or EB-5) for mainland China. While the final action date remains current for all other countries, the final action date for mainland China visa applicants moved up slightly from November 22, 2013 in the November 20015 Visa Bulletin to December 15, 2013. Because the Senate extended the regional center program on September 30, 2015 through to December 11, 2015, the January 2016 Visa Bulletin will likely confirm that visas are unavailable in the regional center categories for all countries unless the regional center program gets extended past December 11, 2015.
The employment-based first preference category (EB1) continues to remain current for both the final action dates and the filing dates for all countries.
The final action date is effectively one’s place in line to immigrate. The final action 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. In the EB-5 context, the final action date is the date that the Form I-526, Immigrant Petition by Alien Entrepreneur is received by USCIS. For family-based immigration cases, the final action date is established when the I-130 is filed with the USCIS. Individuals with final action 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 one’s final action 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 final action 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.