EB2 Visa Category for India and China Leaps Forward – How Long Will It Last?

Blake Miller, Jan. 6, 2012: "Sir Isaac Newton’s first law of motion nicely applies to the recent rapid progression in the employment-based second preference Indian and Chinese immigrant visa categories – what goes up, must come down.  In the past four months, Charles Oppenheim, the Department of State Chief of Visa Control and Reporting Division, has moved the Chinese and Indian second preference employment green card waiting line forward by almost three years. See the latest Visa Bulletin. The February 2012 Visa Bulletin shows the second preference employment-based categories for Indian and Chinese foreign nationals has leaped forward to January 1, 2010.

The worldwide level for annual employment-based preference immigrants is at least 140,000.  Once these numbers are divided between each employment-based category and restricted by a 7% cap imposed on each country, the China and Indian EB2 categories are each left with approximately 2,800 visa numbers per year.  China and India use almost all of their annual employment based green card allocations, but some countries do not.  Unused immigrant numbers are then distributed to other foreign nationals waiting in line (moving the visa availability date forward).  In the past, many of the scarce visa numbers have gone unused because of an inability to accurately allocate them.  Mr. Oppenheim’s aggressive advancement of the visa bulletin indicates he does not intend to let any visa number go unused, as any unused numbers remaining on September 30, 2012 are lost.  Indian and Chinese nationals are rejoicing at the recent advancement in the bulletin, but what Charles gives, Charles can taketh away.

As cut-off date moves forward, more adjustment applications for employees and their dependent family members are filed with the United States Citizenship and Immigration Services (USCIS), and the quota is rapidly reduced.  Once Mr. Oppenheim determines there are enough cases in the system to use up the annual quota, we can expect the employment-based second preference category to rapidly retrogress for Indian and Chinese nationals.  Chinese and Indian second preference immigrants with approved petitions before January 1, 2010, should certainly file their green card visa applications as soon as they can.  If the employment based second preference retrogresses before your case is filed, it may be many months, or even years before you are eligible to file again. While a bill to allocate immigrant visas on a first come, first served basis sailed though the House of Representatives, it’s now stalled in the Senate because of opposition from Senator Grassley, (R) Iowa.

Mr. Oppenheim’s movement of the second preference category is a well-calculated action designed to make sure all the valuable green card numbers allocated by Congress are used.  It has been over 21 years since Congress adjusted the employment-based immigrant visa quota, at least one government official is doing everything he can to ensure qualified foreign professionals receive the visas they have been patiently waiting for.  For Chinese and Indian nationals whose priority dates are in 2009 – file to adjust status to permanent resident as soon as possible.  Like Newton’s apple, the current visa bulletin will come down."