Our attorneys in an interview with Charles Oppenheim of the Department of State on Friday, January 20, 2012 learned the following of particular importance to India EB2 and China EB2 visa applicants.

• The demand for employment based green cards has been unexpectedly low during this fiscal year, FY 2012.  This explains why the priority dates for EB2 India and China have advanced rapidly.  They will continue to advance in March 2012 and may hold at the March 2012 date for several months.

•  Most employment-based visas (85-90%) are allocated to USCIS for adjustment of status cases.  The remainder go to consular posts for issuance of immigrant visas.  Thus, the Department of State relies on USCIS to estimate the number of EB visas needed and the DOS adjusts the cut-off (priority) dates accordingly.  USCIS does not have a reliable way to estimate the demand, even by trying to count approved I-140s or by determining the number of pending PERM applications.  The current leap forward is a good thing for our clients.  It also means that USCIS guesstimate of demand for EB visa numbers was only 50% of what it guessed it would be.  The Department of State, which allocates the visa numbers, cannot access data regarding  approved I-140 petitions so they must rely on USCIS estimates.

• An additional reason for the rapid advance is also due, in large part, to the clearing out of the EB2 2007 Visa gate I-485 applications.

• There is also very low usage of EB1 numbers this year and an additional  12,000 EB1 numbers will likely fall down into the EB2 category, causing the EB2 cut-off date to advance further.

• The EB2 may lose up to 1,000 numbers due to high demand in the EB5 green card investor category.  Unused EB5 numbers fall up to the EB1 category and unused EB1 numbers fall down to the EB2, so 1,000 fewer visa numbers may actually be available to EB2.

• Attorneys believe that the publicized increased EB1 extraordinary ability denial rate and revocations of approved EB1 petitions have deterred EB1 applications based on the USCIS interpretation of Matter of Kazerian.

Prediction:

• The March Visa Bulletin will again see an advance in the EB2 dates up to as much as six months.  There is a slight possibility they will advance up to a year. The dates will likely not advance during the summer, but may advance or retrogress the last two months of the fiscal year.

Stay tuned to www.usvisainfo.com for Visa Bulletin updates.