EB-2 India and China Numbers Advance for First Time Since September, 2010

Monday, April 11th, 2011

Due to the decrease in the overall employment-based green card demand, particularly in the EB-1 category, the State Department Visa Office is currently estimating that at least 12,000 extra visa numbers will be made available for the EB-2 category this year through reallocation of the unused EB-1 numbers; mostly they will go to India EB-2. 

Reflecting this reallocation, the EB-2 India date in the May Visa Bulletin has already advanced for the first time since September, 2010.  EB-2 India and China should continue to advance for the rest of the fiscal year – but availability is still unlikely to pass December, 2006.  

Although the rest of the world is “current” under the EB-2 category, in 2011, India and China both suffer from a backlog due to a 7 percent per country annual limit on visa allocation.  Under the law, however, unused numbers that are reallocated are done so without regard to the per country limit.  Thus, in concrete terms, the 12,000 numbers being reallocated this year means that they will be reallocated without regard to the EB-2 per country limitation which benefits both India and China.  The law provides for reallocation such that unused visa numbers from EB-4 and EB-5 get reallocated to the EB-1 total which in-turn – when unused – get reallocated to the EB-2 category.  Although the fiscal year does not end until September 30, the law provides that the Visa Office can reallocate numbers based on reasonable expectation of usage.

As Jay Solomon points out, there are at least 17,400 applicants (13,200 from India and 4,200 from China) who have filed, or who are ready to file EB-2 adjustment of status applications and whose priority dates are in calendar year 2006.  For the most part, these are applicants who filed adjustment of status applications in July or August 2007 when the visa bulletin reported EB-2 as “current” for every country and whose adjustment of status applications could  not be completed because of retrogression in the EB-2 category for India and China.   In addition to that number, there is an unknown number of applicants with approved EB-2 petitions who do not have pending adjustment of status applications but instead will seek admission via consular processing.  On top of that, there are tens of thousands of additional applicants who have priority dates subsequent to 2006.  However, as you can see, cases with 2006 priority dates are more than enough to use up the 12,000 additional numbers that are being reallocated.  So although the EB-2 India date in the coming months are to advance during this fiscal year based on the reasonable expectation of 12,000 unused numbers, availability is still unlikely to pass December, 2006.

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