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September Visa Bulletin Shows Significant Gains In F-2A And EW-3 Categories And Raises Questions Concerning Prior Retrogression Dates

by Alan Lee

With the visa chart in the last month of fiscal year 2011, significant advances were seen in the F-2A category for spouses and children (under the age of 21 and unmarried) of lawful permanent residents and the EW-3 unskilled worker category. The former moved from 7/22/08 to 12/1/08 for all countries except Mexico. The latter moved from 5/1/05 to 8/1/05 for all countries except China and India which did not advance at all, remaining at 4/22/03 (China) and 6/1/02 (India). Other family and employment category advances were slight or none.

In the family based categories, 3 the remaining 4 categories did not move at all remaining at 5/1/04 for the F-1 category of unmarried sons and daughters over the age of 21 of U.S. citizens; 7/1/03 for the F-2B category of unmarried sons and daughters over the age of 21 of lawful permanent residents; and 8/22/01 for the F-3 category of married sons and daughters of U.S. citizens. The F-4 preference of brothers and sisters of U.S. citizens moved one week for the world from 4/8/00 to 4/15/00 except for Mexico which advanced from 3/8/96 to 3/22/96 and the Philippines from 5/15/88 to 7/8/88.

For employment based categories other than EW-3, the only category to move was EB-3 for skilled workers and professionals which advanced from 11/1/05 to 11/22/05 for most of the world except China and India with both registering one week advances to 7/15/04 and 7/08/02 respectively. EB-1 for extraordinary aliens, outstanding researchers, and multinational executives and managers remained current; EB-2 for advanced degrees, exceptional ability, and national interest waiver cases remained current except for both China and India static at 4/15/07; and EB-4 for certain religious workers remained current as did the EB-5 investor category.

Slow immigrant visa movement is typical for September, a month when visa numbers run out for the fiscal year and visa categories occasionally retrogress or even become unavailable altogether. The only real surprise appears to be the F-2A category, which sprang forward over four months after having already made over a years jump in three months time from May's visa chart date of 6/8/07 to 7/22/08 in August 2011. Such rapid movement at the end of the fiscal year would seem to indicate a prior miscalculation by the Department of State in retrogressing the date so far back in January 2011 (moving the F-2A date from 8/1/10 in December 2010 to 1/1/08 in January 2011 and further retrogressing it to 1/1/07 in March 2011). One can only hope that the Visa Office can use a lighter thumb on the scale in the future in calculating the date to which a category should be retrogressed.

2011 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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