August 2010 Visa Bulletin – The Great Leap Forward?

Please note: This blog post was originally published on Wednesday, July 21, 2010.

For the past three years, all of our articles about the monthly Visa Bulletin have been filled with gloom and doom as the EB numbers continued to retrogress. Absent a legislative fix, we are not about to uncork any bottles of champagne this month.

However, we would be remiss if we failed to note that the August 2010 Visa Bulletin contains welcome news for many of those waiting for their visa numbers to become current:

·    Family Categories – Worldwide

o   The 1st preference category (unmarried adult sons and daughters of U.S. citizens) moved forward 4 months;

o   The 2A preference category (spouses and unmarried children of permanent residents) jumped ahead 8 months;

o   The 2B preference category (unmarried adult sons and daughters of permanent residents) also jumped ahead by 8 months;

o   The 3rd preference category (married sons and daughters of U.S. citizens) moved forward 4 months; and

o   The 4th preference category (brothers and sisters of U.S. citizens) jumped ahead 5 months.

·  Employment Categories

o   EB-2 (persons of exceptional ability and those with advanced degrees) China moved forward over 3 months while India jumped ahead 5 months;

o   EB-3 worldwide (professionals and skilled workers) sprinted forward by 9 ½ months; and

o   EB-3 worldwide (unskilled workers) charged ahead by almost a full year.

Does this mean that “Happy Days are Here Again!”? Hardly! Millions of people, including many professional workers, are forced to wait way too long for green cards.

However, for a few thousand people, including many of our clients, the August Visa Bulletin is a dream come true.

What about would-be immigrants from India and China, who have been waiting for many years for their green cards?

The August Visa Bulletin holds out some hope:

“E. APPLICABILITY OF INA SECTION 202(a)(5)(A) AS IT RELATES TO THE ALLOCATION OF “OTHERWISE UNUSED” NUMBERS

INA Section 202(a)(5)(A), added by the American Competitiveness in the 21st Century Act (AC21), provides that if total demand will be insufficient to use all available numbers in a particular Employment preference category in a calendar quarter, then the otherwise unused numbers may be made available without regard to the annual per-country limits. This provision helps to assure that all available Employment preference numbers may be used. In recent years, the application of Section 202(a)(5)(A) has occasionally allowed oversubscribed countries such as China-mainland born and India to utilize large quantities of Employment First and Second preference numbers that would have otherwise gone unused.

For example, let us assume that 11,600 Employment Second preference numbers are available in a calendar quarter. There is heavy Employment Second preference demand by China-mainland born and India applicants; however, each country is oversubscribed and would ordinarily be limited to about 800 of the available numbers due to the prorating provisions of INA Section 202(e). Applicants from other countries that have not yet reached their per-country limit have reported a total demand of 6,500 numbers. After taking the worldwide demand into account, it is determined that, as a result of the China-mainland born and India per-country limits, only 8,100 of the total available Employment Second preference numbers would be used in that quarter. In this instance, the otherwise unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits. Should that occur, the same cut-off date would be applied to each country, since numbers must be provided strictly in priority date order regardless of chargeability. In this instance, greater number use by one country would indicate a higher rate of demand by applicants from that country with earlier priority dates.”

English Translation – Although Indian and Chinese EB dates will, no doubt, retrogress come October, in September, the EB dates for these two countries will jump forward, perhaps dramatically.