Mr. Oppenheim’s Comments

Although there is no guarantee that Mr. Oppenheim’s comments to AILA would turn into reality, he has been very accurate and careful in his comments in the past.

EB-3 Worldwide (ROW).  Visa numbers are expected to progress to April-August 2005.  Such movement will be gradual and is expected to start in January or February of 2010.

EB-2 China and India.  Annual limits are expected to be reached no later than May.  It is possible that otherwise unused second preference numbers to be made available.  This makes the cut-off date for both EB-2 India and China to progress to October-December 2005.

EB-3 China.  It is expected to move along with EB-3 ROW over the next few months.  The fiscal year is expected to end with a June-September 2003 cut-off.

EB-3 India.  Very slow movement expected.  There are 58,000 pending applications and it is expected to move only  up to five (5) weeks over the entire fiscal year.

Our Conclusion

While there are some good news in this announcement, it becomes clear that some categories, especially EB-3 India, become very undesirable and we strongly recommend clients and readers who are in EB-3 India to consider either filing in EB-2, if possible, given education and experience.  Many EB-3 India applicants who have been waiting for 4-5 years already find themselves facing another 4-5 year wait.  As a result, we often see second EB-2 applications using the recently gained experience filed (often by switching employers) by retaining the earlier EB-3 priority date.  Please contact us if we can help you understand whether your case may qualify.

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (1) month to May 1, 2005, and EB-2 India remains unchanged at January 22, 2005.
• EB-3 ROW moves forward by two (2) months to August 1, 2002, EB-3 China moves forward by two (2) months to August 1, 2002, while EB-3 India moves forward by almost two (2) months to June 22, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one month to June 1, 2001.

• EB-1 remains current across the board.
• EB-2 remain unchanged – EB-2 ROW remains current, EB-2 China remains unchanged at April 1, 2005 and EB-2 India remains at January 22, 2005.
• EB-3 ROW remains unchanged at June 1, 2002, EB-3 China remains unchanged at June 1, 2002, while EB-3 India moves forward by one week to May 1, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one week to May 1, 2001.

• EB-1 remains current across the board.
• EB-2 China moves forward by a week to April 1, 2005 while EB-2 ROW remains current and EB-2 India remains unchanged at January 22, 2005.
• EB-3 ROW remains unchanged at June 1, 2002, EB-3 China moves forward by three months to June 1, 2002, while EB-3 India moves forward by one week to April 22, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one week to April 22, 2001.

EB-2 Numbers Indicate Minor Movement

The October 2009 Visa Bulletin dates suggest a minor forward movement as follows:

• EB-2 China moves forward by a little over two (2) months from January 8, 2005 to March 22, 2005;
• EB-2 India moves forward  by two (2) weeks from January 8, 2005 to January 22, 2005; and
• EB-2 Rest of World (”ROW”) remains current.

EB-3 Visas Are Available Although Forward Movement May Be Slow

As expected, the October 2009 Visa Bulletin brings a number of changes.  Most notably, the EB-3 category is no longer unavailable and the visa cut-off dates are as listed below.  We also provide the visa cut-off dates from the April 2009 Visa Bulletin which was the last time EB-3 visas were available.

• EB-3 China has a cut-off date of February 22, 2002 (compared to March 1, 2003 in the April 2009 Visa Bulletin);
• EB-3 India has a cut-off date of April 15, 2001 (compared to November 1, 2001 in the April 2009 Visa Bulletin);
• EB-3 ROW has a cut-off date of June 1, 2002 (compared to March 1, 2003 in the April 2009 Visa Bulletin).

We have included a comparison with the April 2009 EB-3 visa numbers to illustrate that even though the State Department has made EB-3 visas available, the fact that the government chose to set cut-off dates in October 2009 which are earlier than the April 2009 cut-off dates indicates that a slow movement in EB-3 over the 2009 fiscal year is to be expected.

EB-5 Is Unavailable

The EB-5 category is now unavailable.  This is due to the expiration of the EB-5 Pilot program on September 30, 2009, which means that no visas can be issued after September 30 under the EB-5 category until Congress extends it.  Once this happens, the visa availability is expected to become current.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 China and India:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are January 8, 2005.
• EB-3 is unavailable for all categories.
• Other worker visa numbers are also unavailable.

Based on the last few visa bulletins, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 China and India:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are October 1, 2003.
• EB-3 is unavailable for all categories.
• Other worker visa numbers are also unavailable.

In one of the comments to the August 2009 Visa Bulletin, the State Department notes that the retrogression of EB-2 China has been necessary to take into account the high demand of visa issuances so far this fiscal year.   As a result, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.