Green Card Update for Foreign Nationals

January 10, 2012

The new year is off to a promising start for foreign nationals who are currently in the process of applying for status as permanent residents. Foremost among the positive developments is significant advancement in the cutoff dates for nationals of India and China in the EB-2 preference classification.

• Immigrant visa availability. The U.S. Department of State has published its February 2012 Visa Bulletin and there has been a significant advancement in the cutoff dates for nationals of India and China in the EB-2 (advanced degree professional) employment-based category. The cutoff date is currently January 2010. See February Visa Bulletin. By way of example, there are many Indian national physicians and other advanced degree professionals in this category who have been waiting for an immigrant visa number to become available to them and their families for some time. Those Indian nationals in this category with priority dates before the cutoff date will be eligible to obtain immigrant visas or adjust their status to permanent resident. Generally, an alien’s priority date is set when they commence the green card process. Using the EB-2 category for Indian nationals as an example, advancement in cutoff dates over the preceding 5 months is detailed below.

• Future availability of immigrant visa numbers. The February Visa Bulletin also contains the following observation on the use of immigrant visa numbers, both current and an estimate of future use:

China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

• I-485 processing times. While published processing times for employment-based adjustment applications have slowed a bit, in our experience, adjustment applications have been taking anywhere from 5 to 9 months to process where immigrant visa availability is not an issue. The slowdown in published processing times may be due to adjustment applications coming current following the movement in cutoff dates above, or to USCIS shifting resources to other types of application, although the exact cause is unclear. While published processing times are an estimate of actual processing times, they are not always accurate on a case-by-case basis. Despite published processing times, for our most-recent approval for which the priority date was already current, the I-485 was approved after processing for a little more than 3 months. We filed the I-485 application on September 22, 2011 and it was approved by USCIS on January 9, 2012.

Please contact Matt Raynes at our Bangor, Maine office with questions.

This alert is provided as general information, and is not a substitute for legal or other professional advice.