May 2017 Visa Bulletin – No Movement in EB-2 India; EB China Downgrading Opportunity; EB-1 China/India and EB-2 ROW Cutoff Date Expected

The U.S. State Department has just released the May 2017 Visa Bulletin which is the eighth Visa Bulletin for the FY2017 fiscal year. The headline in the upcoming month’s Visa Bulletin is the lack of any movement for EB-2 India, the notable forward movement in EB-3 China which continues to create a great opportunity for EB-2 to EB-3 China downgrades and I-485 filings.    Also, notable is the warning of a possible cutoff date introduction for EB-1 India and China and EB-2 ROW/Mexico/Philippines.

Summary of the May 2017 Visa Bulletin – Employment-Based (EB)

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates. Please see the section below.

Summary of the May 2017 Visa Bulletin – Family-Based (FB)

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates. Please see the section below.

Final Action Dates for EB-3 China Ahead of EB-2 China – Favorable Conditions for Downgrading

Clients and readers who are interested in EB China will note that EB-3 China has a more favorable cutoff date than EB-2 China by about 20 months (EB-3 China is at October 1, 2014 while EB-2 China is February 8, 2013).   This is similar to what happened in 2014 when EB-3 China was more favorable and when our office handled many cases for Chinese nationals who are EB-2 applicants and who were able to downgrade to EB-3 and file their I-485 adjustment of status.

Here’s how this can work:  in some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

Anticipated Introduction of EB-1 India/China and EB-2 ROW/Mexico/Philippines Cutoff Date

The Department of State is warning that they are likely to introduce a cutoff date for the EB-1 India and China and the EB-2 ROW, Mexico and Philippines categories (which have almost always been current) over the following few months.   While it is not clear when the cutoff date for EB-1 India and China may be introduced, it is likely that a cutoff date will be introduced for EB-2 ROW/Mexico/Philippines before July 2017.

Once such cutoff date is introduced, applicants who are affected will not be able to complete their green card process either at the US Consulate or by filing or getting an approval of I-485 adjustment of status application until their priority date becomes current again.   It is expected that these categories will be current again after October 1, 2017.   Applicants who may be affected by this cutoff date introduction should consider monitoring closely the upcoming Visa Bulletins for the  next few months and be ready to move forward with a prompt I-485 filing or wait until October 1 when it is anticipated that the dates will be current again.

Current Date?

Our office stands ready to assist in the applicable process to take advantage of the significant restructuring in the way the cutoff dates are determined and published.  There are many applicants across many of the employment and family categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the May 2017 Visa Bulletin. Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.