The Department of State (DOS) Visa Bulletin for May 2016 outlining immigrant visa availability has been released. USCIS continues to accept and adjudicate cases that are current, referred to as “Application Final Action Dates for Employment-Based Preference Cases” (“Final Action”). USCIS also provided that it may accept cases using a second cut-off date scheme which represents priority dates that are not quite current yet, called “Dates for Filing of Employment – Based Visa Applications” (“Date for Filing”). Each month, USCIS determines whether the earlier “Dates for Filing” chart may be used for that month. Unless USCIS specifically permits the “Date for Filing” chart to be used in a given month, then the “Final Action” chart will be used to determine when adjustment of status applications can be filed. USCIS publishes information on which chart may be used for filing applications to adjust status on their website each month.
On April 19, 2016, USCIS published on its website that the “Final Action” chart must be used for the May 2016 Visa Bulletin, as follows:
Application Final Action Dates for Employment-Based Preference Cases:
| Employment- Based | All Chargeability Areas Except Those Listed | CHINA – mainland born | EL SALVADOR GUATEMALA HONDURAS | INDIA | MEXICO | PHILIPPINES |
| 1st | C | C | C | C | C | C |
| 2nd | C | 01SEP12 | C | 22NOV08 | C | C |
| 3rd | 15FEB16 | 15AUG13 | 15FEB16 | 01SEP04 | 15FEB16 | 08AUG08 |
| Other Workers | 15FEB16 | 22APR07 | 15FEB16 | 01SEP04 | 15FEB16 | 08AUG08 |
| 4th | C | C | 01JAN10 | C | C | C |
| Certain Religious Workers | C | C | 01JAN10 | C | C | C |
| 5th Non-Regional Center (C5 and T5) |
C | 08FEB14 | C | C | C | C |
| 5th Regional Center (I5 and R5) |
C | 08FEB14 | C | C | C | C |
Honduras, El Salvador and Guatemala appear on the Final Action Date chart for the May 2016 Visa Bulletin due the high demand in the religious worker (SR) and employment-based fourth preference category (EB4 or E4) for these countries. The Department of State has indicated that a determination as to whether these countries will remain subject to E4 and SR final application dates under the FY-2017 annual numerical limitation will be made in early September 2016. As such, they further indicated that future visa availability will depend on a combination of demand for numbers being reported each month, and the extent to which otherwise unused numbers become available. While any forward movement during the remainder of FY-2016 is unlikely, it is not possible to give a specific prediction.
The only change in employment-based second preference category (EB2) was seen for India, wherein, the final action date crept forward a few weeks from a final action date of November 8, 2008 in the April 2016 Visa Bulletin to November 22, 2008 in the May 2016 Visa Bulletin. This category for China remained at a final action date of September 1, 2012 in the April 2016 and May 2016 Visa Bulletins, and the EB2 category for all other countries, including Mexico and the Philippines, remains current.
Similarly, there was no movement in the China employment-based third preference category (EB3) final action date, as it remained August 15, 2013 in the April 2016 and May 2016 Visa Bulletins. The trend that started in the December 2015 Visa Bulletin continues, in that the EB3 category has pulled ahead of the EB2 category for China, maintaining the gap between the two categories.
The EB3 category for India continues to inch forward slightly nearly a month from a final action date of August 8, 2004 in the April 2016 Visa Bulletin to September 1, 2004 in the May 2016 Visa Bulletin. The EB3 category for the Philippines also moved forward quite a bit by a couple months from a final action date of May 1, 2008 in the April 2016 Visa Bulletin to August8, 2008 in the May 2016 Visa Bulletin. This continues a positive trend given that the EB3 category for the Philippines had become unavailable in the July 2015 Visa Bulletin. All other EB3 categories, including Mexico, retained a final action date of February 15, 2016 in the April 2016 and May 2016 Visa Bulletins.
There was also movement in the employment-based fifth preference categories (EB5, or EB-5) for mainland China. While the final action date remains current for all other countries, the final action date for non-regional center visa applicants from mainland China moved forward one week from a final action date of February 1, 2014 in the April 2016 Visa Bulletin to February 8, 2014 in the May 2016 Visa Bulletin. Changes for this category are expected to be reflected in future visa bulletins, particularly the October 2016 Visa Bulletin, because the Senate extended the regional center program through to September 30, 2016.
The employment-based first preference category (EB1) continues to remain current for both the final action dates and the filing dates for all countries.
A determination as to whether these countries will remain subject to E4 and SR final application dates under the FY-2017 annual numerical limitation will be made in early September. Future visa availability will depend on a combination of demand for numbers being reported each month, and the extent to which otherwise unused numbers become available
The final action date is effectively one’s place in line to immigrate. The final action date is established when a PERM application is filed with the Department of Labor, or for those cases not requiring a PERM application (typically EB1 cases and EB2 applications in the national interest), when the I-140 is filed with the USCIS. In the EB-5 context, the final action date is the date that the Form I-526, Immigrant Petition by Alien Entrepreneur is received by USCIS. For family-based immigration cases, the final action date is established when the I-130 is filed with the USCIS. Individuals with final action dates earlier than the listed cut-off date on the bulletin are eligible to submit applications for adjustment of status (or consular visa applications) or if their applications are already pending may have their cases adjudicated. If one’s final action date is not “current” neither agency may accept the case for processing nor adjudicate a pending case because the “visa is not available” if the final action date is not “current.”
Note that DOS looks at your country of birth in determining whether you are a national of a given country, not your country of citizenship. It is country of birth (yours or your spouse) that determines which country to which you are “charged” or “counted” against for purposes of permanent residency. For example, if you were born in India but have since become a citizen of Canada, you are still charged against India and you have to look at advancements for India rather than worldwide numbers. As another example, if you (principal applicant on an employment based process) were born in India but you are married to a person who was born in Canada, both of you can be charged against Canada. This latter example is called “cross-chargeability.”
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. Please also note that while Congress is contemplating new immigration legislation it is far too early to look at the potential changes and their impact on the immigration system. Until new legislation is actually passed and becomes law, we can only look to the current laws for how cases will be processed.
