As expected for the beginning of the new fiscal year, the DOS’s October 2016 Visa Bulletin (VB) shows a marked difference from the September 2016 VB. All EB1 visa categories for all countries returned to current. Similarly, the final action dates in the second and third employment based categories have experienced marked advancement, with some countries returning to being current in the EB2 category.
Here are the highlights from the October 2016 VB:
EB-1: As the Department of State (DOS) previously advised, the final action dates for India and China have returned to being current. All other countries are also current, and all countries are anticipated to remain current for at least the first half of the fiscal year.
EB-2: All countries (except India and China) are current again, and are expected to remain so for at least the first part of the fiscal year. As the DOS indicated, both India and China had some forward movement in that for both countries, the final action date advanced by approximately two years. However, no further meaningful movement is anticipated for the next few months.
EB-3: All countries (except China and the Philippines) did not see any real advances in the final action date for October. The Philippines continues to have forward movement with a final action date of December 1, 2010. This final action date surpasses the DOS’s prediction of a final action date in early 2010 in the next few months. On the other hand, China’s final action date moved forward three years as compared to the September 2016 VB. As with the EB-2 category, no further meaningful movement is anticipated for the next few months.
EB-5: In the non-regional center category, all countries remain current except for China, which had no meaningful advancement. However, the regional center category for all countries is listed as unavailable since the regional center program is set to expire on September 30, 2016.
The DOS has stated that if there is legislative action to extend the regional center program for Fiscal Year 2017 (i.e. October 2016 through September 2017), the final action dates would immediately become “Current” in the regional center category for October for all countries except China. The regional center category for China would be subject to a February 22, 2014 final action date (i.e. the same final action date as the non-regional center category for China) given retrogression for China in this category. This is similar to October 2015 when the regional EB-5 center category previously sunset and then was revived by late Congressional action that DOS allowed for a return to cut off dates that existed prior to the sunset.
General Notes on Final Action Dates: The final action or cutoff date is effectively one’s place in line to immigrate based on the individual’s priority date. Individuals with priority 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 priority 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 dates is not “current.” The priority date is established a number of ways:
- PERM: The date on which the application is filed with the Department of Labor, provided that the PERM is approved and an I-140 is then filed and approved based on the PERM.
- EB1 & EB2 NIW: The date on which the I-140 is filed with the USCIS, provided that the petition is approved.
- EB-5: The date on which the Form I-526, Immigrant Petition by Alien Entrepreneur is received by USCIS, provided that the petition is approved.
- Family-based immigration cases: The date on which the I-130 is filed with the USCIS, provided that the petition is approved.
Note that DOS looks at one’s country of birth in determining whether one is a national of a given country, not the country of citizenship. It is country of birth (principal alien or his/her spouse) that determines the country of chargeability to be “counted” against for purposes of permanent residency. Counting against the country of birth of one’s spouse 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.
