On July 11, 2016, the U.S. Department of State (“DOS”) released the August 2016 Visa Bulletin, which established new cut-off dates under the “Chart A – Final Action Date” of January 1, 2010 for Chinese and Indian EB-1 visa applicants and a new cut-off date of February 1, 2014 for EB-2 visa applicants from all other countries. Below are five insights from the August 2016 Visa Bulletin:
- CHINA & INDIA EB-1 AND EB-2 REST OF THE WORLD (ROW) CUT-OFF DATES TEMPORARY. The newly created cut-off dates were expected. The DOS indicated in the July 2016 Visa Bulletin that cut-off dates for Chinese and Indian EB-1 visa applicants and for EB-2 visa applicants from all other countries would be “established no later than September.” As the end of a fiscal year approaches, cut-off dates are more likely to be established because demand for immigrant visas and for adjustments of status is higher than the annual supply in a given year.
- CHINA & INDIA EB-1 CUT-OFF ENDS OCTOBER 1. The newly created cut-off dates are not likely to last long. The August 2016 Visa Bulletin states that cut-off dates for EB-1 Chinese and Indian visa applicants and for EB-2 visa applicants from all other countries “will once again become CURRENT for October, the first month of fiscal year 2017.”
- EB-5 CUT-OFF FROZEN AT FEBRUARY 15, 2014. For the third consecutive month, the cut-off date for EB-5 Chinese visa applicants remains frozen at February 15, 2014. We hope Congress will consider some relief measures for the EB-5 backlog when considering new legislation to extend the sunset date beyond September 30, 2016. The China EB-5 cut-off date will be moving very slowly resulting in age-out issues for derivative children.
- PRESIDENT OBAMA’S VISA MODERNIZATION EFFORT – A STEP FORWARD OR JUST HOT AIR? The EB-1 preference category for Chinese and Indian applicants remains Current under “Chart B – Date for Filing,” but what does Chart B mean if USCIS does not use it to provide relief and permit adjustment of status filings? In furtherance of President Obama’s November 2014 Modernizing and Streamlining Our Legal Immigration System for the 21st Century policy, USCIS announced modified procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored adjustment of status. The goal of the new procedures was to ensure that the maximum number of immigrant visas is issued annually and to minimize Visa Bulletin month-to-month fluctuations. It appears the announcement focused on implementing an executive action solution to Congress’ inability to enact immigration reform. The current visa quota has been frozen since 1990 and urgent action is required to meet our expanding economy’s need for the best and brightest. If Chart B is not opened, most of the proposed action appears to be little more than hot air.
- NO CHART B ADJUSTMENT FILINGS FOR AUGUST. USCIS again announced that it would only allow applicants to file an application for adjustment of status based on Chart A in August. Since the visa modernizations procedures became effective last year, employment-based applicants have only been allowed to file applications for adjustment of status in October and November 2015, thwarting the prospective benefit of these reforms. Even family-based applicants have been unable to use Chart B since May. Hopefully with the start of the new fiscal year in October, when a new annual supply of immigrant visas becomes available, USCIS will allow adjustment of status filings again based on Chart B. This would allow applicants that are not yet “current” under Chart A to benefit by obtaining interim work and travel permits.
For questions about the August 2016 Visa Bulletin, please contact a Wolfsdorf Rosenthal LLP attorney.
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