Mr. Lee's Article - "Visa Bulletin Movement For August 2010 Extremely Positive For Most Countries; EB-2 Cases For China And India Continue Their Leap Forward." as published in the Immigration Daily on July 20, 2010

By Alan Lee, Esq.

Huge jumps mark the August 2010 visa bulletin. The F-2A category for spouses and children under the age of 21 and unmarried of lawful permanent residents jumped from a visa availability date for those who filed by 7/1/08 in July to 3/1/09 for the month of August. This means that a category that traditionally took over four years for applicants to complete their immigration is now processing to completion cases in less than one and a half years. The F-1 category for unmarried sons and daughters of U.S. citizens jumped four months from 4/1/05 to 8/1/05. The F-2B category for unmarried sons and daughters over the age of 21 of permanent residents jumped eight months from 5/1/03 all the way up to 1/1/04. The F-3 category for married sons and daughters of U.S. citizens saw a four month hike from 9/1/01 to 1/1/02. The F-4 category jumped five months from 1/1/01 to 6/1/01. The above figures in the family based categories included all countries except Mexico, the Dominican Republic and the Philippines.

The employment based cases also saw positive movement with the EB-1 category for extraordinary aliens, outstanding professors and researchers, and certain multinational executives and managers remaining current; the EB-2 category for those with advanced degrees or NIW (national interest waiver) cases remaining current worldwide except for China and India, with China moving forward three months + from 11/22/05 to 3/1/06 and India five months from 10/1/05 to 3/1/06; EB-3 for skilled workers or professionals worldwide except for four countries including China and India moving nine and a half months from 8/15/03 to 6/1/04, with China progressing one month + from 8/15/03 to 9/22/03 and India one month + from 11/22/01 to 1/1/02; the EW unskilled worker category moving almost one year from 6/1/01 to 5/15/02 except for India and Mexico with India moving from 6/1/01 to 1/1/02. The remaining categories for religious workers and immigrant investors under the EB-4 and EB-5 categories remained current. The above figures in the employment based categories include all countries except Mexico.

The rapid movement in family based categories comes about as many applicants who filed long ago have already immigrated through other means, did not qualify for various reasons, or have lost interest in immigrating. The State Department referred to two of these reasons in the July visa bulletin. The Department included a note in the August bulletin that if total visa demand is insufficient to use all available numbers in the employment based categories in a calendar quarter, the otherwise unused numbers could be made available without regards to the annual per country limits under INA Section 202(a)(5)(A). Such a scenario would of course favor China and India born applicants in the EB-2, EB-3 and EW visa categories in which their availability dates lag behind most of the rest of the world. Such is happening now in the EB-2 category. In January 2010's visa chart, the Department of State had projected that by the end of the fiscal year (September 30, 2010), the EB-2 category for China would be somewhere between July-October 2005 and India February-March 2005 - although if the per country limits were lifted through the inability of other countries to exhaust the employment based quotas, visa availability for China and India would run from October-December 2005. With a cut-off date of 3/1/06 for both countries at this time, it is apparent that the optimum scenario of the Department of State has been exceeded and that the drop-off in EB-2 visa use by other countries has been far steeper than anticipated. If all goes according to past pattern, EB-2 visa availability for September for the two countries will continue to progress forward. However, with the new fiscal year beginning in October 2010, immigrant visa availability for the two countries will once again backlog. For example, in September 2008, the EB-2 availability for China and India advanced in lockstep to 8/1/06, only to fall back in October 2008 to 4/1/04 for China and 4/1/03 for India.

In 2008, it should be noted that the Department of State received many complaints that most of the freed up EB-2 numbers appeared to be going unfairly to India born applicants, to which the Department explained that since the law requires that unused numbers be made available strictly in priority date order and there were more EB-2 applicants from India with earlier priority dates, they would receive the larger portion of available numbers than Chinese applicants.

Hopefully during the period from July-September 2010, those eligible EB-2 applicants from China and India who have not yet had an opportunity to file adjustment of status applications due to backlogged numbers will be able to take advantage and file if their priority dates are reached, and those EB-2 applicants with pending but backlogged I-485 applications at U.S.C.I.S. or immigrant visa applications for consular processing at American consulates/embassies will have the opportunity to have final action on their cases.

The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2010 Alan Lee, Esq.


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