The State Department’s Visa Bulletin for April did not continue the dramatic forward movement of India and China EB-2 priority dates that has been observed for the past several months. Klasko, Rulon, Stock and Seltzer has also learned that the Visa Control Office of the State Department is predicting a retrogression of priority dates in the India and China EB-2 category, effective in the May or June Visa Bulletin, to a 2007 priority date. It is not expected that the EB-2 category for natives of “All Other” countries will be affected.
Applicants for adjustment of status must have a priority date earlier than the priority date listed as “available” in the Visa Bulletin each month in order for their application to be filed, or for a pending application to be approved. As of March 1, 2012, that priority date has been set at cases with a labor certification (or EB-2 I-140 not requiring a labor certification) filed prior to May 1, 2010 for natives of India and China. The Visa Control Office rapidly advanced the priority dates in order to build an “inventory” of cases ready to be approved at the USCIS offices, and those cases will now be processed by USCIS between now and the end of the government’s fiscal year, September 30.
For the month of April, the Visa Bulletin holds the priority date for India and China EB-2 steady at May 1, 2010. For May, the Visa Control Office recently announced that they expect the priority date will “retrogress” or be set earlier, possibly as early as August of 2007. This retrogression will mean that new applications for adjustment of status will not be able to be filed after April 30, 2012 for cases with priority dates in 2008, 2009 and early 2010. Priority dates are not expected to advance again until October 1, 2012, at least, when the government’s new fiscal year begins.
It is very important to note that if an I-485 Application for Adjustment of Status is filed while the person’s priority date is current, it will remain pending until the priority date is current again. Since the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, during the time the priority date is retrogressed.
Due to this recent announcement, we recommend that anyone with a priority date before March 2010 who is eligible to apply for adjustment of status do so by late April, as their opportunity to file the application will likely end as of May 1, 2012, and will not return until at least October 1, 2012 (and likely much later).