EB-2 India Retrogression Predicted to be Imminent

The employment-based second preference category (EB-2) for India, which recently saw a nearly four year increase in priority dates, is now predicted to undergo a major retrogression. As a refresher, the priority date is the date that determines an individual’s place in line for lawful permanent resident status, or a “green card.” For most employment-based green cards, it is the date that the labor certification application (PERM) was filed with the Department of Labor. According to Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State, individuals in the EB-2 India category could see a major retrogression in their priority date, perhaps as early as November of 2014.

Federal law imposes a maximum allotment for green cards and immigrant visas that can be issued each year for the various visa categories. To enforce these limitations, the Department of State (DOS) publishes a monthly Visa Bulletin that lists the cut-off dates that determine when an individual may apply for a green card or immigrant visa (if applying abroad) under each preference category. Only those applicants with a priority date earlier than the cut-off date can apply for a green card (file I-485) or can be scheduled for their immigrant visa interview in a given month. If the priority date is on or later than the cut-off date, the individual must wait until the priority date becomes “current”, i.e., earlier than the cut-off date listed in the Visa Bulletin. Due to the high volume of employment-based green card applications from India, the retrogression for EB-2 India could go as far back as 2005.

Main takeaway:  If you are from India and your employer filed a labor certification (PERM) for you under the EB-2 preference category prior to May 1, 2009, we urge you to file for your Adjustment of Status (I-485) to lawful permanent resident as soon as possible. Please note that although the maximum number of EB-2 visas for India has already been reached for this fiscal year, the United States Citizenship and Immigration Services (USCIS) will continue to accept EB-2 India cases and place them on hold until October 1, 2014, the start of the new fiscal year.

Individuals and their family members whose priority dates are now current based on the September 2014 Visa Bulletin, and who are eligible to file their I-485 Adjustment of Status applications with USCIS, should contact an attorney at Minsky, McCormick & Hallagan, P.C. for assistance.