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EB-2 and EB-3 Updates for India & China

March 28, 2015

In a recent meeting on March 13, 2015, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State predicted the following for EB-2 and EB-3 China:

EB-2 India. After advancing 16 months in March 2015, EB-2 India will advance another eight months in April, to September 1, 2007. It is reasonable to expect EB-2 India to continue to advance at a steady pace for another couple of months before slowing or holding toward the end of the fiscal year.

EB-3 India. Mr. Oppenheim states that at this time, there is nothing which can be done to improve the India EB-3 cut-off date situation unless there is a legislative change. The amount of pre-adjudicated India EB-3 demand versus the annual limit prevents more than a one or two week monthly movement of this cut-off date. For example, at this time, more than 9,100 India EB-3 applicants with priority dates earlier than January 1, 2005 (alone) have already been reported to the Visa Office and the FY2015 annual limit is approximately 2,875.

 China EB-2 to EB-3 Downgrade Phenomenon (at least for FY2015). In April 2015, the EB-3 China cut-off date (currently October 22, 2011) will retrogress more than nine months to January 1, 2011. As a result, EB-3 China will return to its more “natural” position and will be three months earlier than EB-2 China (April 1, 2011). This will effectively end the EB-3 downgrade phenomenon.

For months, the cut-off date for EB-3 China has been later than EB-2 China due to insufficient EB-3 demand. As a result, EB-2 China beneficiaries filed EB-3 I-140 petitions in an attempt to take advantage of the earlier EB-3 cut-off date. This surge in demand required a correction to EB-3 China, resulting more than nine months of retrogression.

In November 2014, Mr. Oppenheim predicted that a correction would be required as early as February 2015. EB-3 China beneficiaries were fortunate that this phenomenon lasted two months longer than anticipated. EB-3 China beneficiaries with priority dates between April 1, 2011 and October 22, 2011 file them before the end of this month when the window will close.  It is reasonable to expect that filing now will not result in final action on their case in the foreseeable future.

Mr. Oppenheim continues to monitor EB-2 China, which will advance seven months to April 1, 2011 in April. He notes that additional forward movement in May remains possible if sufficient demand for EB-2 China does not materialize at the beginning of April. As was the case in EB-3 China, some corrective action may be required later in the year should there be excessive demand based on the movement of the EB-2 cut-off date.

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