Major Retrogression of Second Preference Employment Based Visa Numbers for China and India

March 26, 2012

On March 23, 2012, the State Department (DOS) announced that cut-off dates for second preference employment-based (EB-2) immigrant visa availability for China-mainland born and India will retrogress to August 15, 2007 in the May Visa Bulletin, which has yet to be published by DOS. The EB-2 category is reserved for members of professions holding advanced degrees and persons of exceptional ability. According to the announcement, the retrogression is required because of the high demand for the EB-2 category from those countries and the need to continue to have visa numbers available for natives of other countries.

The March and April 2012 editions of the Visa Bulletin published by DOS indicated that the cut-off date for mainland born Chinese and Indian nationals in the EB-2 category was May 1, 2010, which reflected an almost four month jump forward from January and February of this year. Thus, the announced retrogression will have a severe impact on waiting periods for immigrant visas for these foreign nationals. In 2009, The National Foundation for American Policy published an excellent analysis of decade long and longer waits for employment based immigrant visa numbers.

In comparison, the April 2012 Visa Bulletin employment-based third preference category (EB-3) for jobs requiring at least two years of education, training, or experience notes that the cut-off date for Indian nationals was September 1, 2002 while the cut-off date for Chinese (mainland) nationals was March 1, 2005. Certainly, this announcement greatly narrows the gap between the EB-2 and EB-3 waiting periods.

Based on the announced retrogression by DOS, U.S. Citizenship & Immigration Services (USCIS) indicated that it will “preadjudicate” applications for adjustment of status that are received in April, and that DOS will hold the “preadjudicated” cases until October 2012, or earlier, if there are any EB-2 visa numbers available before the end of this federal fiscal year (end of Sept. 2012). In addition, this preadjudication will expedite processing upon availability of immigrant visa numbers based on the commencement of the new federal fiscal year on October 1, 2012.

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