Written by attorney Andrew Wilson

Update on Green Card Backlog and Priority Date Demand-September 2012

Many people had been anxiously awaiting to see what the priority dates would look like for the new fiscal year starting on October 1, 2012. The dates are out, and the retrogression for EB-2 India is even more discouraging than anticipated. See: It was initially predicted that EB-2 India would start the new fiscal year with a priority date sometime in 2007. Speculation then changed to a date in 2006. The recent release shows that EB-2 India actually retrogressed back to 2004. This is disheartening as EB-2 India had made it up to 2010 as recently as March 2012. EB-2 China also went backwards, but only until July 2007. On Thursday, August 30, 2012, Roberta Freedman, AILA Students & Scholars Committee member, and Mike Nowlan, Chair of the AILA Business Committee, had discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 and FY2013 with Charlie Oppenheim of the Department of State’s Visa Office. (AILA InfoNet Doc. No. 12012349) Notes from that discussion are: * Employment Based (EB)-1 visa usage is extremely high. August 2012 was at a near record high. The Visa Office does not know why. Is USCIS clearing out backlogs because of the new Deferred Action for Childhood Arrivals program, or is this pent up demand from 2011, or more “upgrades"? The answer is unknown. The EB-1 visa category could close in September if usage remains this high (close the 40,000). It would then go current in October. In July 2012, EB-1 usage was almost 3,000, of which roughly 1,200 had 2011 or earlier priority dates, and the rest had 2012 priority dates. The 13,000 unused EB-1 numbers that were expected in FY2012, and which would then “drop down" to EB-2, did not happen. * EB-2 India priority date will probably go to 2006 when the Visa Bulletin is published next month (not 2007 as previously predicted). This is due in part to the retrogression in 2012, as well as the high level of EB-1 usage. India is expected to stay in 2006 for some time. It could fall back to 2005, but that does not appear likely right now. Slow movement in this category in FY2013 is expected. EB-2 China priority date will be further ahead than India, but that assessment has not been completed yet. {Please note that as discussed above, the Visa Bulletin shows that EB-2 India actually fell back to 2004 and EB-2 China is 2007.} * EB-2 worldwide may go current in October, or it may go to early 2012 and then current in the November Visa Bulletin – a 2 step process. Why the delay? Employment-based numbers move in a fairly predictable usage pattern (unlike family-based cases). As a result, the Visa Office prefers to have a steady usage of EB cases per month. There are expected to be many EB-2 worldwide cases pending or filed in October, and slowing the usage could help predict usage for the rest of the year. A “correction" in EB-2 worldwide towards the latter part of FY2013 could happen (in other words, potentially visa retrogression for EB-2 worldwide and no longer current). * EB-3 worldwide should remain as posted for the rest of September. No prediction could be given as to where it will go in the October Visa Bulletin. Steady progress is expected in FY2013, unless heavy EB-1 and EB-2 usage in FY2013, which would slow the speed of EB-3 worldwide. The priority date retrogression and backlog problem remains a serious issue. We can expect more and more individuals trying to find any possible way to upgrade from EB-3 to EB-2 or EB-2 to EB-1. Please feel free to contact me anytime with any questions about the current priority date backlog problem. Regards, Andrew M. Wilson, Esq. [email protected]

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer