The American Immigration Lawyers Association (AILA) recently met with Charlie Oppenheim from the Department of State’s (DOS) Visa Office to discuss the employment-based (EB) immigrant visa priority dates and possible advancement of the priority date for the remainder of FY2012.

Mr. Oppenheim’s office monitors use of immigrant visa numbers and sets the priority dates for each monthly Visa Bulletin. The Visa Bulletin dates determine both which applicants may submit their I-485 adjustment of status applications or consular processing applications for green cards in a given month, and which green card applications may be approved in that month. The goal of the Visa Office is to ensure that all available immigrant visa numbers are issued in each fiscal year. That is because any unused visa numbers do not carry over to the following fiscal year – unused visa numbers are lost.

Updates from the meeting:

DOS advises that EB green card issuance has been slow in FY2012, so DOS has been advancing the priority dates to better gauge how many approved immigrant petitions remain that will result in a Form I-485 or immigrant visa application. EB-1 visa petition approvals remain low, and DOS is basing part of the EB-2 advancement on the assumption that 12,000 EB-1 numbers will go unclaimed. Only about 35% of the available green cards have been issued this fiscal year, and approximately 45% should be issued by the end of February.
DOS also advised that the impact of EB-3 to EB-2 “upgrades” is unclear. DOS does not remove an EB-3 number from its demand calculations until the EB-2 application for the same individual has been approved. This means that the EB-3 calculations are not an accurate reflection of actual EB-3 cases that will eventually be approved in that category.
DOS predicts that EB-based priority dates will advance again with the March 2012 Visa Bulletin, likely by at least a few months. An advance of six months is possible, although an advance of much more than that is unlikely. After March 2012, DOS will likely hold the EB priority date over the summer, and then retrogress or advance dates depending upon prior I-485 filings. At present, DOS lacks the data to predict demand and priority date changes for Q4 of FY2012 (July through September). Note that this is only a prediction. DOS cannot guarantee that EB numbers will advance in March 2012. The March 2012 priority dates will not become official until the March 2012 Visa Bulletin is published in February 2012.

From a practical perspective, persons in the India and China EB2 categories who become "current" in March 2012 should ensure that they file their Adjustment of Status (AOS) applications during that month. It is possible they will not be able to file their AOS applications in April, should priority dates retrogress or become unavailable. Please note that there is no advantage to filing an AOS application on the first date of the month, so there is no need to rush to file as early as possible in March.

Clients of Jackson & Hertogs may wish to review our AOS Checklist, which includes a list of documents and information that will be required to prepare and file the AOS application. WARNING: Do not obtain a medical examination report until you know your priority date will come current. Please note that Jackson & Hertogs runs a monthly priority date report after the Visa Bulletin is published, and will be contacting clients who will be current in March and eligible to file AOS applications that month.

It is important to note that "nationality" for immigrant visa allotment is not the same as citizenship. Generally, DOS looks at the country of birth in determining whether a person is a national of a given country. As a result, persons who become citizens of other countries (i.e., Indians who become Canadian citizens) are still considered nationals of their birth country for immigrant visa purposes.

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