Clarity and Strength in Immigration Law

Thinking of Filing for a Fast-Track Green Card? Strategies for the Visa Bulletin Blues

It is old news by now that the June visa bulletin shows that the EB-2 category for China & India show “U” for unavailable. This means that no one born in India and China can file in the EB-2 category (unless you qualify for cross-chargeability; see last week’s post). The Department of State reports that the EB-2 category for India and China will be unavailable for the rest of the year. DOS also reports that it may be spring 2013 before the May 10, 2010 priority date is restored for China and India EB-2.

Further, DOS states that depending on future demand, it may even be necessary to set a cut-off date for the EB-1 categories, and/or for all other countries for EB-2. The visa bulletin states that these are only estimates, and depends on future demand for these categories.

What does this mean for you?

If you are considering filing for permanent residence in the EB-1 or EB-2 categories, you may want to consider filing earlier rather than later. Why file when there are no numbers available, or if they may retrogress? There are many benefits to filing now. First, remember that you can file the I-140 petition at any time, whether a visa is immediately available or not. Also, remember that in the fast-track scenario (in which a labor certification is not required), filing the I-140 petition is the event that sets the all-important priority date. With that in mind, here are some other points to consider as you devise your strategy:

  •  If there are visas (green cards) available in your category now, you may want to file now, while you can concurrently file the I-140 and I-485. 
  •  If you concurrently file (file the I-140 and I-485 together), remember even if the dates retrogress later (meaning there is not a visa immediately available), you still get the benefits while the I-485 is pending. That is, you would still get the work permit and travel document, as would your spouse.
  •  If the priority dates in your category are retrogressed, or unavailable, this is a great time to get together a solid I-140 (NIW or alien of  extraordinary ability or outstanding researcher/professor). Remember, filing the I-140 petition (the form that you file with these filings) is the action that sets the priority date. The priority date “saves” your place in line of folks waiting for a green card. The fact that the priority date is not current does not mean that you should do nothing. It means that you have adequate time to put together a strong filing, without the pressure of rushing to file before the priority dates retrogress. If you file now, you will have less time to wait later, when more green cards are available. In other words, when more green cards are available and others decide to start their filing, your petition will already be ready in the queue, aheads of the others.

Have questions? Please feel free to contact Attorney Emily Sumner at esumner@sumnerimmigration.com to set a consultation to develop your visa bulletin blues-busting strategy!