September 2018 Visa Bulletin: Immediate Temporary Retrogression for EB-2 and EB-3, Predictions for S

The Department of State (“DOS”) Visa Office has released the September Visa Bulletin. Due to high demand for employment-based visas, the Visa Office will impose temporary cut-off dates for EB-2 and EB-3 Worldwide, EB-2 and EB3 India, and EB-2 China, effective immediately. Although these categories are subject to drastic retrogression, the Visa Office anticipates that most cut-off dates will be temporary, lasting only through September 30, 2018. We have summarized the immediate impact and predicted movement for each category below. EB-2 and EB-3 Worldwide: EB-2 and EB-3 Worldwide will undergo temporary retrogression to January 1, 2013 and November 1, 2016. The Visa Office expects that these categories will return to “Current” for the foreseeable future on October 1, 2018, the start of Fiscal Year 2019 ("FY2019"). EB-2 and EB-3 India: EB-2 and EB-3 India will also experience severe retrogression with cut-off dates for more than two years for EB-2 India and six years for EB-3 India. The Visa Office does anticipate that EB-2 and EB-3 India will return to the 2009 dates established in the August Visa Bulletin on October 1st, however forward movement will likely be slow. EB-2 and EB-3 China: While EB-2 China will advance by approximately four months, EB-3 China retrogresses by more than two years. Similar to EB-2 and EB-3 India, the Visa Office expects EB-2 China to recover the March 1, 2015 date from August at the start of the fiscal year. Despite the Visa Office’s earlier prediction in July 2018, it is unlikely that EB-3 China will return to June 1, 2015 in October. Instead, the visa category is likely to advance from the November 2014 cut-off date by up to 3 weeks at a time. EB-1 for All Countries: Cut-off dates for EB-1 China and India remain unchanged at January 1, 2012 for the month of September, while EB-1 Worldwide will move forward by one month to June 1, 2016 from August’s imposed cut-off date. Despite previous forecasts for the EB-1 category, the Visa Office announced that cut-off dates will be imposed for all countries in October instead of returning to “Current” status. Due to heavy demand for visas in this category, it is unlikely that there will be forward movement for the EB-1 category prior to December 2018. How This Impacts Green Card Applicants Effective August 9th, the temporary imposition of cut-off dates will cause a delay for some green card applicants who would otherwise be eligible to proceed to the final stage of the green card process (the adjustment of status application). For certain categories, the delay is only expected to last until October 1st, the start of FY2019. At this time, the United States Citizenship and Immigration Services (“USCIS”) is still accepting applications up until August 31st. We will be reaching out to applicants who are eligible to file adjustment applications now, so that where possible, we can file the adjustment application before September 1st. Unless otherwise indicated on the United States Citizenship and Immigration Services (“USCIS”) website, applicants must use the Application Final Action Dates chart for determining when they can file their adjustment applications. The USCIS has confirmed that the Application Final Action Dates must be used for the month of September. Application Filing Dates (when an immigrant visa or adjustment of status application can be filed). Foreign nationals with priority dates earlier than the dates for filing visa applications indicated in the Visa Bulletin chart below, or where noted as “C” for “current,” may file an immigrant visa application through the Department of State consular service (“consular processing”) during the applicable month. Such persons may also apply for adjustment of status application through USCIS in the United States, provided that USCIS has indicated on its website that the cut-off dates indicated on the Application Filing Date chart may be used for adjustment filings during the applicable month. If USCIS does not indicate that the Application Filing Date chart may be used for adjustment filings, the adjustment application must be filed based on the Final Action Date chart (see below). Application Final Action Dates (when an immigrant visa or adjustment of status application can be approved). Foreign nationals with priority dates earlier than the final action dates indicated in the Visa Bulletin chart below, or where noted as “C” for “current,” may be approved for an adjustment of status application or immigrant visa during the applicable month. The Final Action Dates Chart also determines when an adjustment of status application may be filed, unless USCIS indicates that the earlier Application Filing cut-off dates may be used to determine when the adjustment may be filed for that particular month.

Application Final Action Dates for September 2018*:

Application Filing Dates for September 2018*:

* We have omitted information for El Salvador, Guatemala, Honduras, and Vietnam, as well as the 3rd "Other Workers," 4th, and 5th Preference Categories from these charts. To view the full bulletin, please visit the Department of State Visa Bulletin.

How Immigrant Visa Quotas and the Visa Bulletin Work The Immigration and Nationality Act limits the number of employment-based immigrant visas that may be issued each year to a worldwide level of 140,000. The Act also allocates this limited number of visas based on preference category and country of birth, such that each country is subject to an individual per-country quota, in addition to the overall worldwide quota. For foreign nationals who are being sponsored by their employers for a green card, the most common preference categories are: the employment-based first preference category (EB-1), which is reserved for aliens of extraordinary ability, outstanding researchers, and multinational managers; the employment-based second preference category (EB-2), which is reserved for advanced degree holders [1] and aliens of exceptional ability; and the employment-based third preference category (EB-3) which is designated for professionals, skilled workers and “other” workers. Due to the limited number of immigrant visas, combined with the very high demand for these visas, most foreign nationals are subject to significant backlogs that delay the process of obtaining permanent residency. These backlogs are expressed as “final action cut-off dates” in the Department of State’s monthly Visa Bulletin. The foreign national’s place in line for purposes of the quota backlogs is referred to as the “priority date.” In the employment-based context, the priority date is established on the date that the employer starts the green card process by filing a PERM labor certification application or immigrant petition on the foreign national’s behalf. Before the foreign national can be approved for a green card, the sponsored foreign national’s priority date must fall on a date that is earlier in time than the applicable final action cut-off date listed in the Bulletin. As of October 2015, each month’s Visa Bulletin also includes a separate chart providing “filing cut-off dates,” which indicate when the last step of the permanent residency process may be filed. This two-tier Visa Bulletin, with separate cut-off dates for approval and final action, is designed to help the Department of State more accurately predict demand of green cards, and better regulate the number of green cards approved each year. It is believed that the two-tier Visa Bulletin system will reduce fluctuation in cut-off dates in the Bulletin each month, and reduce the number of "lost" immigrant visa numbers each year. Note that where a preference category is not affected by a quota backlog for a particular country of birth, the cut-off date is indicated as “current” (“C”) in the Visa Bulletin. This means that the foreign national may apply for the final step of the green card process irrespective of his/her priority date.

[1] The EB-2 category is reserved for foreign nationals who possess either an advanced degree (master’s or higher), or equivalent, or qualify as an “Alien of Exceptional Ability.” The equivalent of an advanced degree is defined as a bachelor’s degree followed by five years of progressively responsible experience in the field. Note that where a bachelor’s degree and five years of experience are used to qualify for EB-2, the bachelor’s degree must normally be a 4-year “single source” degree, and must also be deemed equivalent to a U.S. bachelor’s degree. Also note that to qualify for EB-2 as an advanced degree holder, the position for which the foreign national is being sponsored must actually require an advanced degree or equivalent.

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