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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

June 2007 Visa Bulletin : EB2 And EB3 Movement

by Sheela Murthy and Aron A. Finkelstein

There was significant forward movement in the cutoff dates for India and China in the employment-based, second preference (EB2) category. The employment-based, third preference (EB3) category cutoff dates jumped forward considerably for all countries, including India and China, moving the dates forward by about two years across the board. This means that many people will be able to file their I-485 Adjustment of Status (AOS) cases and that many pending I-485 / AOS cases are potentially eligible for approval while the dates remain current.
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Our Role in this Change
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Visa cutoff dates are set based upon expectations of demand for the numbers. If the anticipated demand is higher than what is experienced in reality, there is a chance that numbers will not be used by the end of the year. These numbers end up being wasted under current laws, unless there is some change in the law that allows for them to be recouped at a later time. Attorneys from the Murthy Law Firm discussed issues related to overestimation of demand for visa numbers with the Department of State (DOS), as reported in our April 27, 2007 article Visa Number Movement Expected for India and China. The issues raised were considered, among other factors and research undertaken to revise the estimates of demand, resulting in the forward movement of visa dates as seen in the June 2007 Visa Bulletin.
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Employment-Based First Preference (EB1)
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The EB1 category remains current for all countries of chargeability in June 2007.
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Employment-Based Second Preference (EB2)
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The EB2 category is also current for all countries of chargeability, except for China and India. The cutoff date for China moved forward by almost nine months, to January 1, 2006. India's cutoff date moved forward by more than a year; to April 1, 2004. This is very good news for many of our readers.
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Employment-Based Third Preference (EB3)
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In EB3, all countries of chargeability continue to have cutoff dates. All of the chargeability categories, however, saw forward movement by approximately two years. While there are still many people with priority dates that are after the new cutoff dates, this change will mean that many people will be able to file I-485/AOS or process for immigrant visas at the consulate.
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The cutoff date for worldwide and the Philippines in the EB3 category will be June 1, 2005. For China, India, and Mexico the new cutoff date is June 1, 2003.
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Other Worker Category
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The EB3 Other Worker category was previously unavailable, and was expected to remain so. It is now at October 1, 2001 for a brief period. It is expected, however, to return to unavailable in July 2007.
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Employment-Based Fourth (EB4) / Fifth / Religious Workers and Targeted Employment (EB5)
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The EB4, EB5, religious workers, and the targeted employment categories are all current.
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Translators
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This EB4 subcategory for Iraqi or Afghani nationals who have worked with the U.S. Armed Forces as translators continues to have a September 18, 2006 cutoff date.
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Predictions for July / August 2007
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The DOS stated that there could be additional advances in the cutoff dates in the upcoming months. This will allow many people to file their I-485/AOS cases. Once the USCIS starts to act on those cases and creates demand for the visa numbers (a visa number is assigned when an I-485 is approved), the cutoff dates will have to be adjusted. This adjustment will mean that the dates will likely move backward. The DOS could not offer a prediction of when this might occur, however.
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What this Means : File by June 30, 2007
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These forward movements in the dates mean that many people will now be eligible to file their I-485/AOS cases or move forward with consular processing for immigrant visas. The visa cutoff dates discussed are for June 2007. Therefore, cases based upon these cutoff dates cannot be filed until June 1, 2007. The dates are valid at least through the end of June. Thus, the deadline for filing under the June Visa Bulletin is June 30, 2007. If the dates remain unchanged or move forward in the July Visa Bulletin, then there will be additional time to file these cases during July 2007. So it will depend on the movement of dates.
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There is no need to file on June 1, 2007, nor is there any advantage in terms of visa numbers in filing on June 1st. This does not work like the H1B cap, which required everyone to rush to file on the first day of filing. For I-485 cases, it is better not to rush unnecessarily in order to file at the beginning of June. Rather, take the time that is needed to make sure the case is complete and proper. Then, one may file at any time on or before June 30, 2007, unless the dates continue to be current during July, also.
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As explained above, the June 30, 2007 timeframe could potentially be pushed back further, if the cutoff dates either move forward or remain unchanged for July 2007. Until the July Visa Bulletin is issued in mid-June 2007, however, this factor remains an unknown and no one should assume that s/he will be able to file after June 30th.
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Travel Planned for Summer 2007?
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One important point about I-485 filings is that it is necessary to be physically in the U.S. in order to file. Many may have travel plans for the summer months of June and/or July. That travel may interfere with the ability to file the I-485, thus, it may be necessary to reschedule one's travel or s/he may risk losing this chance to file the I-485. The same also applies to dependant spouses and children. Sometimes spouses and children spend extended periods abroad during the summer. It may be necessary to bring the spouse and any other family member back to the U.S. in order to file their I-485s. Of course, these spouses and children have to be eligible for this travel within a dual intent category, like the H-4 or L-2 status, in order to enter the U.S. with the intention to file the I-485. The only exception is if, by the mid-June release of the next Visa Bulletin, it is clear that we have the month of July to file, these family members could remain abroad for a few extra weeks.
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Movement of Dates is Likely Temporary
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While this forward movement is a tremendous relief to many, it is most likely only a temporary situation. The DOS is only relaxing the constraints a little, in an effort to make sure that all visa numbers are utilized during this fiscal year, which ends Sep 30, 2007. It does not represent any overall fix or improvement to the retrogression problem. It will allow many people to file their I-485/AOS cases, however. This will open opportunities for those individuals. It will allow others to obtain approvals of their pending I-485/AOS cases and consular processing cases.
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Conclusion
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Since this reprieve with the movement of immigrant visa numbers is expected to be brief and temporary, it does not help many who have cases that are also quite old - for example, it does not cover EB3 nationals of India for the last half of 2003 through the present. We at the Murthy Law Firm still believe that a larger, legislative fix is needed; so that the visa number allocations match the actual need U.S. employers have for foreign workers. We urge our readership, employers and employees alike, to write their congressional representatives [sample letters are available from AILA through MurthyDotCom at (http://www.murthy.com/news/n_caneac.html)] to request that they address this problem for the long term.


About The Author

Sheela Murthy is the founder of the Law Office of Sheela Murthy, P.C. which consists of over 45 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Office of Sheela Murthy, P.C. handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.

Aron A. Finkelstein is the Assistant Managing Attorney at the Murthy Law Firm. He earned his Bachelor of Arts degree in Political Science from the University of Maryland and completed his law degree at the University of Baltimore. Attorney Finkelstein is a member of the Maryland State Bar, the United States District Court for the District of Maryland, and the Supreme Court of the United States.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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