June 2010 Visa Bulletin Released

The US Department of State has released the Visa Bulletin for June 2010. The biggest news is that the Dominican Republic is now added as a separate country in Family and Employment preference categories.

Other major changes (or not):

* Family 2A preference dates for all countries, advance by over a year.
* India EB-2 is unchanged from last month. This means that it has moved only one week since October 2009.  In that month, the current date was 1/22/05, and now it is 2/1/05. 

February 2010 Visa Bulletin released

The US Department of State has released the new Visa Bulletin for February 2010. As in previous months, there is very slight change.  To view the bulletin, click here.

Visa Bulletin for January 2010 released

The US Department of State has released the new Visa Bulletin for January 2010. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. EB-2 for China moves forward by 1 month, and EB-2 for India is unchanged from last month. This means that India EB-2 has stayed the same sinced October 2009.  

3rd preference categories change slightly from last month. EB-3 for China, Philippines and all other countries move forward 2 months.  Mexico advances 1 month and India by almost 2 months.

December 2009 Visa Bulletin released

The US Department of State has released the new Visa Bulletin for December 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. 3rd preference and other categories are mostly unchanged from the November and October bulletins.  The only changes are that India EB-3 and 'other worker" categories move forward by 10 days.

Visa Bulletin for November 2009 issued

The US Department of State has released the new Visa Bulletin for November 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. 3rd preference and other categories are mostly unchanged from the October bulletin. Any change is just a month, at most.

Visa Bulletin for October 2009

The US Department of State has released the new Visa Bulletin for October 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories. However, Family 1st Preference for Mexico moves forward by 17 months

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, China, and countries other than India and China.

The biggest change is that the bulletin once again lists priority dates for 3rd Preference and Other Workers. These categories have been "Unavailable" since the May 2009 bulletin. Unfortunately, the priority dates listed on the October bulletin are all at least a few weeks behind the dates listed the last time, in the April bulletin. This may be the Visa Office being conservative in its first allocation of numbers for the new fiscal year. Let's hope so, and hope that they move forward in the next few months.

FAQs on recapturing I-140 priority dates.

1. When can I recapture an earlier priority date?

If you have an approved I-140 in the employment-based 1^st, 2^nd or 3^rd preference category, this can be transferred to a subsequent I-140 filed on your behalf in one of these categories. Priority dates cannot be transferred to 4^th or 5^th EB preference petitions or to family-sponsored petitions.

2. What if my earlier employer withdraws the I-140?

Your priority date is transferable unless CIS revokes the I-140 petition due to fraud or misrepresentation. Withdrawing the I-140 does not affect priority date recapture.

3. Does the new I-140 petition need to be filed by the same employer?

No. The later I-140 can be filed by a different company and be for a different position.

4. Doesn’t the new job have to be in the “same or similar occupational classification” for portability?

No. Recapturing priority dates does not require that the I-140s be for similar jobs. "Porting" usually refers to AC21 portability, nothing to do with priority dates. AC21 portability allows a person to change jobs during the permanent residence process in specific circumstances.

5. Can I transfer my earlier EB-3 priority date to my husband’s later EB-2 filing, so that we have an earlier EB-2 priority date?

No. Priority dates can only be transferred from one I-140 to another when the I-140s are filed for the same beneficiary. They are not transferable between beneficiaries.

6. How do I ask CIS to use an earlier priority date?

Normally the lawyer filing the 2^nd or later I-140 will include a letter asking CIS to use the earlier priority date. The request needs to include a copy of the Earlier I-140 approval, or at least the receipt number. CIS needs some way to confirm that the earlier I-140 was for the same beneficiary.

7. What if the 2nd I-140 was already approved - how to I make sure CIS is using the earlier priority date?

You should not need to do anything. However I would contact CIS once the priority date is current to be sure that are using that PD
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PLEASE READ: I welcome all the comments to this posting. However, please do not ask specific questions about your particular case via the blog. I can only provide general information on this forum.

The US Department of State has released the new Visa Bulletin for September 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and the entire 3rd preference and Other Workers category remains "Unavailable", like it has been since May 2009. The biggest change is that the priority date for India and China EB-2 categories have moved forward again. In June and July 2009, these categories retrogressed by 4 years (India) and 5 years (China). Both categories advance by over a year this month, each moving from 10/1/03 to January 8, 2005.

AC21 - Changing Employers/Positions while Permanent Residence is Pending

One of the biggest areas of concern for foreign nationals now if what happens if they are laid off or find another job before their permanent residence is approved. Under immigration laws, specifically the American Competitiveness in the 21st Century Act (AC21), the US government introduced some job flexibility to foreign nationals with long-pending permanent residence applications.

AC21 provides that a person's labor certification or I-140 approval remains valid when an alien changes jobs if:
(a) A Form I-485, Application to Adjust Status, on the basis of the immigrant petition has been filed and remained unadjudicated for 180 days or more; and
(b) The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

This means that a foreign national can change positions within the same employer, or even change employers and locations, provided that the new position is in the "same or similar occupational classification."

What does "same or similar occupational classification" mean?

The AC21 decision is based on the duties of the position, not the title. Many people think that if they are moving from Engineer 1 to Engineer 2, they are safe, or that if they move from Engineer 1 to Software Analyst, they will have problems. This is not necessarily the case. USCIS refers to the Dictionary of Occupational Titles (DOT) for guidance. CIS advises comparing the DOT code assigned to the original position, and that attached to the new position, to see if they are "same or similar." A Programmer does not have to stay a programmer forever, however she could not move to a Manager role and use AC21.

Can I use AC21 to "port" to self employment?

Yes. USCIS guidance from December 2005 allows this, if the "same or similar" requirements are met.

What if I leave the original employer before the 485 is pending for 180 days?

The December 2005 memo explains that just you leave the employer before 180 days, does not make you ineligible to port to similar employment. There must have been a bona fide job offer by the first employer, and the you must have intended to take that job.

What if my original employer withdraws my I-140?

If the employer withdraws the I-140 before the 485 has been pending for 180 days, you are not portable. This is why we recommend not porting until after 180 days.

What if my I-140 is denied?

AC21 portability only applies if the I-140 was approvable when filed and CIS has said that it must actually be approved before a favorable decision on portability can be made.

How does portability affect my priority date?

Your priority date stays the same and continues to be the date that the labor cert or I-140 (if no labor cert.) was first filed.

What happens if I am laid off and can't find a new job?

This is tricky situation. In theory, the permanent residence process is for a future opening, so that you don't have to currently have a position until the 485 is approved. However, CIS has recently been "pre-adjudicating" cases even though the priority date might be very backlogged. In many of these cases, CIS has issued Requests for Evidence, looking for updated letters confirming an offer of employment. A person who is unemployed clearly cannot provide such a letter, and it is possible that these 485s might be denied.

For more AC21 information, see the USCIS guidance memos:
August 2003
May 2005
December 2005
May 2008
Photo by: http://www.flickr.com/photos/alberto_sechi/2231789372/

Visa Bulletin for July 2009 released

The US Department of State has released the new Visa Bulletin for June 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories. Some categories do not advance at all. Mexico FB-1 has retrogressed by 22 months. and FB-3 by 16 months.

Employment-based categories have not changed for 1st preference applicants, and the entire 3rd preference and Other Workers category remains "Unavailable", like it was in May and June. The biggest change is that the priority date for China EB-2 category has retrogressed from 2/15/05 in June to 1/1/00 in July. Sadly, this is similar to what happened with India EB-2 last month.

Visa Bulletin for June 2009 released

The US Department of State has released the new Visa Bulletin for June 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories. Some categories do not advance at all, but none have retrogressed.

Employment-based categories have not changed for 1st preference applicants, and the entire 3rd preference and Other Workers category is "Unavailable", like it was in May. The biggest change is that the priority date for India EB-2 category has retrogressed from 2/15/04 in May to 1/1/00 in June. This is bad news for 2nd preference applicants from India, unfortunately.

Visa Bulletin for May 2009 released

The US Department of State has released the new Visa Bulletin for May 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories. Some categories do not advance at all, but none have retrogressed.

Employment-based categories have not changed for 1st and 2nd preference applicants. However, the entire 3rd preference and Other Workers category is "Unavailable", meaning that nobody in that category can file in May, even with a very old priority date.

Visa Bulletin
Priority Dates and Preference Categories explained

Visa Bulletin for April 2009 released - significant retrogression

The US Department of State has released the Visa Bulletin for April 2009. In family-based categories there is very slight movement forward. In employment-based categories, however, the dates actually retrogress (move backwards) for some categories. In many cases, the retrogression is 2+ years, unfortunately. EB-3 for China retrogresses almost 8 months, EB-3 for Mexico retrogresses by nearly 6 months, EB-3 for Philippines and all other countries moves back by over 2 years.

The "other workers" categories also show retrogression in all categories: China by 20 months, India by 8 months, Mexico by 2 years, and Philippines and all other countries by over 2 years. Immigrant (permanent resident) visas for religious workers are "Unavailable" in April.

For an explanation of preference categories and priority dates, see here.

Visa Bulletin for March 2009 released

The US Department of State has released the Visa Bulletin for March 2009. In most categories there is very slight movement forward, just by a few weeks or months, if at all. Priority dates for Mexican nationals in the employment-based 3rd and "other workers" categories show the greatest movement. The 3rd preference category moves forward by 4 1/2 months, while the "other worker" category advances by 18 months.

Visa Bulletin for February 2009 released

The US Department of State has released the new Visa Bulletin for February 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories. Employment-based categories advance by 5-6 months for India and China EB-2, by 4-5 months for China and Mexico EB-3, and unfortunately the dates retrogress for EB-3 Other Workers from China, India and Mexico. http://travel.state.gov/visa/frvi/bulletin/bulletin_4417.html.

(Credit for this photo and the last one go to my brother-in-law, Paddy, from the family's recent visit to New York)

What are preference categories and priority dates in immigration law and why do they matter?

There are 2 main routes to permanent residence (green card) in the US: employment-based and family-based. Less common routes include asylum, diversity lottery and investment.

Employment and family-based applicants are divided into different categories. In family cases, the categories depend on the family relationship. For example, married sons and daughters of US citizens are 3rd family-based preference. Employment cases are divided based on the type of position and job requirements. For example, foreign nationals in positions that require a master’s degree OR a bachelor’s degree and 5 years of experience are 2nd preference, or EB-2. For more details, click on the Permanent Residence link here: http://www.martinvisalaw.com/faqs.html.

Your priority date is generally the date that the first step in permanent residence (PR) was filed for you. This usually means the date that (a) labor certification was filed; (b) an I-140 was filed (if no labor certification was required); or (c) an I-130 was filed in a family-based case. Priority dates are important because they determine your place in the queue for the final step of the PR process. The Department of State publishes a Visa Bulletin every month, showing which priority dates are “current” for the following month. You can only file the final step of the PR process if the priority date is current.

The waiting periods vary depending on your preference category and your country of birth. The latest Visa Bulletin, showing the current priority date, is here: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html