January 2010 Visa Bulletin: PD Predictions For FY10

by Sheela Murthy et al., attorneys from the Murthy Law Firm

The U.S. Department of State (DOS) Visa Bulletin has been released for January 2010. It reflects slight movement in EB3 for all countries. Those categories that were previously current remain current in January. The Visa Bulletin contains some helpful explanations and enlightening predictions on the movement of priority dates (PDs), which we are pleased to share with MurthyDotCom and MurthyBulletin readers. [The most recent Visa Bulletin chart is always available on MurthyDotCom.]

Summary of January 2010 Visa Bulletin

Employment-Based, First Preference (EB1)
This category remains current for all countries of chargeability.

Employment-Based, Second Preference (EB2)
This category continues to be current for all countries, except India and China. The cutoff date for India did not change and continues to be January 22, 2005. The cutoff date for China moved forward by one month, to May 1, 2005.

Employment-Based, Third Preference (EB3)
This category cutoff date moved forward for all countries. The cutoff date for all chargeability areas except those listed advanced by two months, to August 1, 2002. The same advancement and August 1, 2002 cutoff date also appears for China and the Philippines. India moved forward by just under two months, to June 22, 2001. Mexico moved by one month, to July 1, 2002.

The very limited EB3 "Other Worker" category has a cutoff date of June 1, 2001 for all countries of chargeability.

Employment-Based, Fourth (EB4) and Employment-Based, Fifth (EB5) Preferences
EB4 and EB5 continue to be current for all countries of chargeability.

Explanation of Stagnation of Priority Dates

The Visa Bulletin explains the reason for the unchanged cutoff dates in some of the EB categories, noting that many of the EB categories were unavailable at the end of FY2009. This resulted in a high level of demand for visa numbers at the beginning of FY10, in October and November 2009.

The demand is created by approvals of adjustment of status to permanent residence (I-485) cases and immigrant visa approvals. The USCIS has been processing more I-485 cases, thus utilizing more visa numbers. When the USCIS processes enough cases to use the available visa numbers, then the DOS does not face the possibility of having immigrant visa numbers that go unused. The DOS often moves the cutoff dates forward in an attempt to increase the volume and rate of number usage during a given fiscal year. When USCIS processing happens more efficiently and at volumes high enough to deplete the available immigrant visa numbers as they become available, the DOS does not need to expand the number of cases eligible for approval by moving the cutoff dates forward. Of course, depletion of the universe of cases with priority dates before the cutoff date means the dates will have to move forward at some point.

Predictions of Priority Dates for FY10

The Visa Bulletin for January 2010 provides some helpful predictions for the future movement of cutoff dates in the EB categories for the fiscal year 2010, which ends September 30, 2010. Of course, these are only predictions based on estimates of demand from various countries for immigrant visa numbers.

Predictions of EB1 / EB2 All Countries other than India and China
The Visa Bulletin confirms it is unlikely that cutoff dates will be established in EB1 or the EB2 categories that are current (all countries, other than India and China).

Predictions of EB2 for India and China
There are provisions for movement of visa numbers within categories, and from certain categories to others, if those numbers otherwise would go unused in the particular fiscal year.

If No Rollover of Unused Visa Numbers
The Visa Bulletin predicts that, if there is no such movement of unused numbers within EB2, the expected cutoff date likely for India to reach by the end of the 2010 fiscal year would be between February and early March 2005. For China, this would be sometime between July and October 2005.

If There is Rollover of Unused Visa Numbers
However, if there are unused numbers from other EB2 countries (as often occurs), the PDs (or cutoff dates) for both countries could move anywhere from October to December 2005. If this type of rollover of numbers occurs, the law requires that the cutoff dates for the countries receiving these numbers be the same. Thus, one country may receive more numbers than the other, in order to keep the priority dates or cutoff dates identical.

Predictions of EB3
The predictions for EB3 are that the category of all chargeability areas except those listed will move to sometime between April and August 2005, as will the Philippines.

China is likely to end the fiscal year with a cutoff date between June and September 2003. Mexico should be between January and June 2004, and India is projected as reaching January or February 2002.

Conclusion

Strategy and Possible EB2 Filing Options
Regularly, we at the Murthy Law Firm are contacted by individuals considering upgrading their cases from earlier EB3 approvals to new EB2 cases, especially as their positions and job duties have become more complex over the past several years. Such individuals hopes to transfer the earlier PD from the earlier EB3 to the new EB2 filing. For cases like this, when possible, our firm is happy to help with the new PERM and I-140 filing, while keeping the previously filed I-485 and interfiling the new EB2 approval for the green card applicant.

Many applicants for the green card anxiously await the Visa Bulletin each month, and the Murthy Law Firm get many requests for predictions of cutoff date movement. The January 2010 Visa Bulletin predictions and explanations of the complex issue of visa numbers and priority dates or cutoff dates is helpful for planning purposes. We are always happy to share useful information on the Visa Bulletin with our MurthyDotCom and MurthyBulletin readers.

About The Author

Sheela Murthy, et al., attorneys from the Murthy Law Firm attorneys from the Murthy Law Firm, has represented clients located around the world in all aspects of U.S. immigration. Attorney Sheela Murthy and her team of legal professionals handle cases for Fortune 500 companies, mid-sized and small companies, as well as individuals undergoing the U.S. immigration process.

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