The Department of State (DOS) Visa Bulletin for June 2012 indicates that the employment-based second preference (EB2) category for India-born and China-born individuals will become “Unavailable”.  The category will remain unavailable until the new Fiscal Year (FY).  This means that regardless of EB2 priority date, no I-485 Adjustment of Status application can be filed or adjudicated for China- and India-born applicants in the second preference category. The necessity of making the category unavailable is a result of high demand for visa numbers, although DOS predicts that the priority date will be returned to May 1, 2010 when the FY2013 begins on October 1, 2012:

Despite the retrogression of the China and India Employment Second preference cut-off date to August 15, 2007, demand for numbers by applicants with priority dates earlier than that date remained excessive.  Such demand is primarily based on cases which had originally been filed with the U.S. Citizenship and Immigration Services (USCIS) for adjustment of status in the Employment Third preference category, and are now eligible to be upgraded to Employment Second preference status.  The potential amount of such “upgrade” demand is not currently being reported, but it was evident that the continued availability of Employment Second preference numbers for countries other than China and India was being jeopardized.  Therefore, it was necessary to make the China and India Employment Second preference category “Unavailable” in early April, and it will remain so for the remainder of FY-2012.  

Numbers will once again be available for China and India Employment Second preference cases beginning October 1, 2012 under the FY-2013 annual numerical limitations. Every effort will be made to return the China and India Employment Second preference cut-off date to the May 1, 2010 date which had been reached in April 2012.  Readers should be advised that it is impossible to accurately estimate how long that may take, but current indications are that it would definitely not occur before spring 2013. 

All countries other than India and China remain "current" in the EB2 category.  The employment-based first preference category (EB1) also remains current for all countries.   However, DOS predicts that based on the current rate of demand, it may be necessary to establish a cut-off date for the EB1 category and a cut-off date for all countries other than China and India in the EB2 category in the next few months.

The employment-based third preference (EB3) numbers for all countries other than India, China and Mexico moved slightly forward to June 8, 2006.  EB3 India moved forward a few days to September 15, 2002.  EB3 China moved forward several months to August 8, 2005.

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 (e.g., Indians who become Canadian citizens) are still considered nationals of their birth country for immigrant visa purposes. Where an applicant and spouse were not born in the same country and the spouse's country of birth has current availability, “cross-chargeability” to that country is available. If this situation applies and has not been discussed with your attorney, please contact our office. 

For general information on visa retrogression, please see our FAQ on this subject.  For more information on the Visa Bulletin and country quota movements, including information about movement in the Family-Based Quotas, please see our DOS Visa Bulletin and Quota Movement page, which includes detailed nationality-specific charts of quota movement since 1996.

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