Examination of EB-2 Visa Demand Vis-a-Vis H.R. 3012 (Part 2)

By Alan Lee, Esq.

This is the second of three parts of the article which was published in the most respected immigration publication, Interpreter Releases, on March 5, 2012. The question is whether H.R. 3012, the bill to open the entire worldwide advanced degree (EB-2) quota to natives of China and India so that they do not have to wait so long to immigrate, is actually necessary in light of the huge forward leap of the EB-2 category by almost four years since March 2011. Part 2 looks into the supply of EB-2 visa numbers in the future and the number of cases that will require EB-2 numbers through conversations with the Chief of the Immigrant Control and Reporting Division of the Department of State.

The Department of State had earlier projected the March advance of the EB-2 category for China and India as possibly up to six months, but the movement was actually four. Charles Oppenheim, the Chief of the Immigrant Control and Reporting Division of the Department of State, confirmed that U.S.C.I.S. had requested him to move the date forward even more, saying that 50% of those having approved EB-2 petitions had not filed adjustment of status applications.  There are approximately 140,000 employment based numbers given out every year with the EB-2 category entitled to 28.6% of the numbers plus any leftover numbers not required by the first preference.  EB-2 is thus entitled to at least 40,040 numbers along with the drop down from EB-1.  The EB-1 category for extraordinary aliens, outstanding researchers and professors, and multinational executives and managers is also entitled to 28.6% of the numbers plus any numbers not required for the fourth and fifth preferences.  The EB-4 category for religious workers and EB-5 for immigrant investors are underused categories.  Because of USCIS’ tight eligibility restrictions on many EB-1 cases, there are many unused numbers in that category.  All the thousands of unused numbers from EB-1, EB-4 and EB-5 then flow to the EB-2 category. 

The author had two conversations with Mr. Oppenheim on February 23, 2012, and February 24, 2012, along with another on February 23, 2012, with a member of his staff.  From information gleaned from State Department reports and the staff member, the Visa Office issued 46,016 EB-2 visa numbers in FY-2009, 53,872 in FY-2010, 66,804 in FY-2011, and 29,804 in FY-2012 as of February 23, 2012.  In the first conversation with Mr. Oppenheim, he was cautiously optimistic that if conditions continued as they have with demand, he could move the EB-2 date to January 2011 by the end of the fiscal year. However, he believed that many of the persons with approved petitions who had not filed I-485 applications had just delayed the filings and he did not know the attrition rate of those who had given up.  He cited increasing demand in the EB-2 category, and that his office had issued 2000 EB-2 numbers to CIS since his last week's meeting with the CIS Ombudsman.  He was unsure whether this was a temporary spike or a long-term trend; confirmed that he expected approximately 55,000 EB-2 numbers to be available for the year; and that he had approximately 25,000 left to distribute.  Mr. Oppenheim anticipated less falldown from EB-5, said that EB-4 use last year was such that he almost put a cutoff date on it, and that there now appeared to be more EB-1 demand.  Also that he was seeing what appeared to be many upgrades from EB-3 to EB-2 as there were EB-2 cases with old priority dates for which the Visa Office was getting requests for numbers.  He was also cautious as it takes CIS four-six months to complete a case and request a visa number.  In explaining the low demand of 335 visas requested by CIS in February, Mr. Oppenheim explained that the 335 were only numbers cleaning out the 2007 cases. 

In a follow-up conversation on February 24, 2012, Mr. Oppenheim was less optimistic as he had checked the latest numbers, and did not see visa availability moving to January 2011 by September 2012.  EB-2 visa demand was coming in much quicker, and EB-1 numbers were on the upswell as well.  EB-2 visa demand for February was now up to 6600 and he was looking at 7000 by the end of the month.  He did not see as much fall-down from EB-1 as previously expected.  Mr. Oppenheim believed that we may have turned the corner, but the caveat was that if there were backlogs CIS did not tell him about and if there was a shift in the process such as CIS throwing many bodies at a backlog, this could be a one-two month surge.  On future movement, he said that he might move the date a little  - one to two months - or hold it for a month to get time to see if the increased demand was a temporary spike. If there was continued heavy demand, he would have to put on the brakes. 

An air of uncertainty thus permeates the question of EB-2 visa demand at the highest level.  Mr. Oppenheim and the Visa Office work with whatever statistics are available, but an accurate estimate is hard to attain as seen from the above.  There are many variables at play, and not enough statistics for accurate forecasting. How many I-140 petitions have already been approved for which Indian and Chinese natives will be submitting EB-2  I-485 adjustment of status packages for themselves and their families when their priority dates become available?  Will it be the same case as the family based categories in which the Department of State advanced a category such as F-2A (spouses and children of lawful permanent residents) to August 1, 2010, in the visa chart of December 2010 only to retrogress it to January 1, 2007, by the March 2011 visa bulletin? A difficulty arises in counting the numbers as there appears to be no apparent separation in the number of I-140 receipts from the number of I-485 cases counted in the U.S.C.I.S. inventory.  This is important as adjustment of status through U.S.C.I.S. accounts for 85% to 90% of all employment based green card cases.   

Reprinted by permission of West, a Thomson business. Interpreter Release is the leading weekly immigration law periodical featuring in-depth, comprehensive analysis and authoritative coverage of legislation and regulations, cases, and agency guidance.

Copyright © 2012 Thomson Reuters.

The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. 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 Interpreter Releases, Immigration Daily, and 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 Bush Administration in the Intelligence Reform Act of 2004.

Copyright © 2003-2012 Alan Lee, Esq.
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