ALERT: August Visa Bulletin Retrogression Will Impact Most Green Card Categories

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In an effort to keep our clients informed of the latest immigration law developments, Ellis Porter would like to bring to your attention the latest developments of the green card visa bulletin released by the Department of State each month. Most recently, the August 2019 Visa Bulletin has just been released, bringing forth some important changes that will affect some of you. Below, we’ll explain what is happening and the effects we expect in the coming months.

First, here’s a quick refresher on how the Visa Bulletin works…

There are two steps to obtaining a green card: Filing an I-140 immigrant petition and applying for the green card. The I-140 stage is where we attempt to show that the employee qualifies under a given employment-based green card category (EB-1, EB-2, EB-3, etc.). The I-140 may be filed at any time and is not affected by the below updates.

The second step involves filing an I-485 Adjustment of Status application (if you are in the US) or applying for an immigrant visa at a consulate abroad by filing the DS-260 (if you are outside the US). You can only begin the second step and be approved for your green card if your “priority date” is “current.” Your priority date is the date on which your I-140 immigrant petition or PERM application (if required as a preliminary step to filing an I-140 petition) was filed. Current priority dates are listed each month in the Visa Bulletin, which allows us to determine who is eligible to start the final step of their green card process. The Department of State sets current priority dates based on its internal assessment of demand for green card numbers in each employment-based green card category compared to the statutory quotas that apply to each category.

Our analysis of the August 2019 Visa Bulletin

Whether you are impacted by the changes announced in the August 2019 Visa Bulletin, and how you are impacted, will depend on several factors, including how far along you are in the green card application process, the category under which your green card application is or will be filed and your country of birth.

We have prepared a separate analysis for each client situation. Please find the situation that applies to you and read the explanation carefully. We typically receive a high volume of questions we receive when a new visa bulletin like this one is released and we know many of you will have specific questions about your individual cases. We will do our best to respond to your individual questions as soon as possible. In the meantime, we are providing this detailed analysis to help you get a basic understanding of how you will be impacted by these changes.

As you review this analysis, please keep in mind the following:

  • Your “priority date” is the date of filing for your I-140 immigrant petition (or the PERM Labor Certification if required as a preliminary step to filing an I-140 petition). Please also keep in mind that all changes discussed below will go into effect on August 1, 2019.

  • The Visa Bulletin only applies to the I-485 or Immigrant Visa Processing (DS-260) processes.  It does not affect the ability to file an I-140 or the adjudication timeline of the I-140.

  • If you have already received your green card, these changes do not apply to you and will not impact you in any way.

  • If you have already filed an I-485 Adjustment of Status application or started immigrant visa processing, he following information may affect when your I-485 or immigrant visa will be approved. Your case will continue pending, but will not be eligible for approval until your priority date is current. If you are waiting for your EAD (I-765, employment authorization) or AP (I-131, advance parole) to be approved or need to renew them, they will continue to be processed as normal. The changes in this Visa Bulletin only affect when your I-485 or immigrant visa can be approved. 

  • If you have not yet filed an I-485 Adjustment of Status application or started immigrant visa process, the following information is important, and you should be sure to read it carefully, as it may impact when you can file the I-485 or apply for your immigrant visa. Keep in mind that if you haven’t yet filed the I-140, your priority date will be the date on which your I-140 (or PERM application, if required) was filed, unless you have a previous I-140 approval that has already established your priority date.

August Visa Bulletin Impact on Clients Born in India

Because EB-1, EB-2, and EB-3 categories for India have faced long backlogs recently, there are no major unanticipated changes.

EB-1/India

According to the latest information we have, the priority dates for EB-1 India are not expected to change for the remainder of this fiscal year, which lasts through September 30. It is anticipated that EB-1 for India will remain stagnant at with a current priority date of January 1, 2015, even beyond the start of the new fiscal year on October 1. Therefore, you must have an EB-1 priority date of January 1, 2015 or earlier to be eligible to file the I-485 or for your pending I-485 to be approved.

EB-2/India

The EB-2 category for India continues to progress very slowly and the current priority date will move forward only eight days to May 2, 2009 after August 1.

EB-3/India

The EB-3 category for India will see the largest priority date retrogression, moving from from July 1, 2009 back to to January 1, 2006 - a retrogression of three and a half years. The backlogs will remain very long in this category for the foreseeable future.

August Visa Bulletin Impact on Clients Born in China

Similar to India, China has seen minimal priority date movement since July for EB-2 and EB-3, but EB-1 has retrogressed by approximately 10 months to the point that EB-2 (January 1, 2017) is now more current than EB-1 (July 1, 2016). EB-2 for China has moved forward slightly while EB-3 has retrogressed.

EB-1/China

If you are filing or have filed for an EB-1 (either EB-1A Extraordinary Ability, EB-1B Outstanding Researcher/Professor, or EB-1C Multinational Manager/Executive) and were born in China, there will be a retrogression on August 1, meaning that the current backlog will get longer. You must have an EB-1 priority date prior to July 1, 2016 to be eligible to file the I-485 or for a pending I-485 to be approved. For most of our clients who fall into this category, there is no practical change for you: you will need to continue to wait to begin the second step of the green card process.

EB-2/China

The priority date for this category moved forward two months from November 1, 2016 to January 1, 2017. As discussed above, EB-2 China now has a shorter wait time than EB-1 China. If you do not already have a pending or approved EB-2 I-140, you may want to file one now. Please feel free to contact your Ellis Porter attorney to discuss whether doing so could help speed up green card processing times in your situation.

EB-3/China

The priority date for this category moved forward six months from January 1, 2016 to July 1, 2016.

August Visa Bulletin Impact on Clients Born in All Other Countries (Except India and China)

EB-1/All Other Countries

Perhaps the most disconcerting news in the August Visa Bulletin is the substantial retrogression for EB-1 for the “all other countries” except India and China category. Previously, the government had indicated that effective at the beginning of the government fiscal year (October 1), the EB-1 “all other countries” category would resume at its normal processing time as “current” or at least closer to the present date. Unfortunately, not only has this category retrogressed by nearly two years (from April 22, 2018 in July to July 1, 2016 in August), but the US government is now indicating that the anticipated advancement of the EB-1 category to take place on October 1 is unlikely, and at best, October 1 will reflect the July 2019 visa bulletin, which was still more than a year away from being current. The Department of State explained this development as follows:

There has been a steadily increasing level of Employment applicant demand since late May for adjustment of status cases filed with U.S. Citizenship and Immigration Services, and there is no indication that this increase will end.  Therefore, it has been necessary to establish or retrogress many of the August Final Action Dates in an effort to hold worldwide number use within the maximum allowed under the respective FY-2019 annual limits.

The implementation of the above mentioned dates is expected to be only a temporary issue.  For October, the first month of fiscal year 2020, every effort will be made to return these final action dates to those which applied for July.

Though the EB-1 “all other country” category retrogression is not a new development, it now appears that the light at the end of the tunnel is now much farther than anticipated. All individuals with EB-1 I-140s filed on or after April 22, 2018 should make every effort to continue to maintain their underlying non-immigrant status until their green card is issued, as it could be quite some time before their process may be complete.

EB-2/All Other Countries

If you are filing, or have filed, an EB-2 or EB-3 I-140 immigrant petition, and were born in any country except India or China, there will be a retrogression on August 1, 2019, meaning you will no longer be eligible to file the I-485 unless your I-140 priority date is before January 1, 2017 (EB-2) or July 1, 2016 (EB-3). You must have an EB-2 priority date prior to January 1, 2017 or an EB-3 priority date prior to July 1, 2016 to be eligible to file the I-485 or have the green card approved via I-485 or immigrant visa processing. This is the most significant change in the August Visa Bulletin, though it is only expected to remain until September 30. Thus, the current expectation is that this retrogression will only apply for the months of August and September.

Summary

If you are waiting to file the I-485 or begin immigrant visa processing based on an EB-1, you will have to continue to wait, but we remain hopeful that things will begin to move forward once we are a month or two into the new government fiscal year, starting October 1, 2019.

EB-2 India will continue to be a long wait, while EB-2 China is the one notable category that has moved forward rather than backward. The EB-2/EB-3 “all other countries” retrogression is the biggest news, but the expectation that it will only be temporary for two (2) months should hopefully minimize the impact for most clients, as the only expected practical implications are for individuals that otherwise planned on filing an I-485 in August or September, or were far along enough in the I-485 or immigrant visa processing process that a green card might otherwise have been issued in the month of August or September.

We know these changes can be confusing and stressful, and we will continue to work closely with you to navigate these changes and help you achieve your immigration goals in the most efficient manner possible. Feel free to reach out to your Ellis Porter attorneys with further questions about your individual case, but please allow us some extra time to respond over the next week or so as we work through these changes.