The Department of State has released the 2016 May Visa Bulletin.

Employment Based-2 and Employment Based-3 categories for India moved only a few weeks. The filing date is July 1, 2009 for EB-2 India. El Salvador, Guatemala, and Honduras have their own chargeability in the employment-based category but not in the family-based category.

Family Based-2 for all non-listed chargeabilities is June 15, 2015 (spouses of LPRs). There is no filing date for the family-based categories. That will be released later this month, according to the State Department.

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It is that time again: The April 2016 Visa Bulletin has been released by the Department of State. You can find all of the final action dates and filing dates posted for Employment- and Family-Based categories.

The expected jump did not come for EB-2 India category. Charlie Oppenheimer had predicted 3 month leaps, but we will keep our eyes peeled for that leap in May.

There was only slight movement in the Family-Based categories.

The reason that there are limits and cutoff dates is because there is a limited allocation of immigrant visas, prescribed by country, category, and preference. Here is the State Department’s explanation of calculations:

1. Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by March 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

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Charlie Oppenheim is infamous in immigration circles for being the man at Department of State for providing predictions on how the immigrant visa categories change month to month. Because of the limited number of immigrant visas for each preference, category, and chargeability, there are long waits for popular classifications, ie India EB-2 and EB-3, China EB-2 and EB-3, and just about every family-based preference. Here are some interesting and useful tidbits from the check in with Mr. Oppenheim.

Charlie believes that the final action dates for the EB-3 China category have the potential to advance five months each month. He believes the EB-2 China category will continue its quick monthly advance.

EB-2 India is one of the most backlogged categories and it only moved one month and a half from February to March. Charlie anticipates movement of 3 months for the final action date in the future.

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1st Circuit Court Says No Visa Revocation Appeal 

The US Court of Appeals for the First Circuit decided that judicial review is precluded concerning the revocation of visa petition approvals. The Attorney General and Secretary of Homeland Security have the discretionary power to revoke visa petition approvals and to do so without the affected party (parties) having an appeal process.

The First Circuit is the eighth circuit court to rule in this way. It concurs with the majority of the circuit courts in the country, with the reasoning that the statute is unmistakably clear. It is a clear manifestation of Congressional intent that a visa can be revoked without appeal.

Many consular decisions do not have an appeals process. For example, someone who has a visa petition denied under INA 214(b) does not have the ability to appeal that decision. That person just needs to try again with a new petition.

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The US Court of Appeals for the Second Circuit rendered a decision that has meaningful impact for thousands of nonimmigrant employees in the United States. The appellate court ruled that US Citizenship and Immigration Services has to provide notice of its intent to revoke an immigrant visa petition to the employee who will be affected by the potential revocation. For someone who is the beneficiary of an employment-based visa petition, this means that individuals must be provided notice. The ruling declared that USCIS must give notice to all actually affected, which can mean the employee who ported to a new job or the new employer.

The basis for the lawsuit was an employee had submitted an application for a Green Card based on an approved visa petition. Although employment-based visas are dependent on employers, employees are allowed to switch jobs. This can wrangle employers, who have made the investment in the employment-based visa for their employees. The employee changed jobs, USCIS decided to revoke the approved visa petition and it sent notice only to the first employer (who had filed for the visa.). The employee and her new employer did not learn about the revocation until it was too late. USCIS denied the Green Card application the employee filed because of the revoked visa petition. The Service also denied the employee’s attempts to reopen the visa revocation.

There is a jurisdictional issue at play. The Second Circuit Court of Appeals sits in New York and covers New York, Connecticut, and Vermont. Its decision is not binding nationwide. The American Immigration Council and American Immigration Lawyers Association are advocating for USCIS to adopt the Second Circuit’s logic and decision.

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The Department of State released the February 2016 Visa Bulletin. It also published the Immigrant Visa Waiting List Report, which is an annual publication of the number of visa applicants on the waiting list in the preferences and subcategories. There is a wait list because of statutory numerical restrictions. For example, 28.7% of immigrant visas may come from Employment-Based 1 (EB-1) preference. EB-2 and EB-3 preferences for the China and India chargeabilities are the perpetually oversubscribed categories. Oversubscribed means that there are more people applying than spots available for immigrant visas.

One encouraging sign is movement in the EB-2 India category. It jumped 6 months from February 1, 2008 for the final action date to August 1, 2008. The visa bulletin continues to employ the filing and final action date system. The filing date for EB-2 India is July 1, 2009.

The data from the Department of State shows that over half of petitions are filed Family-Based 4 (FB-4), which is US citizens filing for their siblings. This category for all chargeabilities has an excruciating long wait period. On the Employment-Based side, there was a major increase in EB-5 petitions filed and considerable increases in the number of EB-1 and EB-2 petitions filed in 2015 as opposed to 2014. The agency’s report also includes a per country list. This is important because there is a per country limitation of no more than 7% of all immigrant visas issued for one country.

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The January Visa Bulletin was released yesterday by the State Department. The January bulletin preserves the action date and filing date framework, instructing potential applicants when they are eligible to file for green cards. For example, for the Employment-Based 2 category of India, the filing date is July 1, 2009 and the action date is February 1, 2008. That means someone who has an approved I-140 in that category before July 1, 2009 is eligible to file, but that someone with a priority date before February 1, 2008 is current. This bifurcated system is based off predictions and is intended to assist applicants and be more efficient with immigrant visas.

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The Department of State published the December 2015 Visa Bulletin yesterday. The filing dates have been a recent addition, implemented for a more efficient visa process. However, there was no movement on the filing dates. The filing action dates remained similar for the most part. The glaring exception is that the Employment Based 2 category for India jumped ahead 10 months. The Visa Bulletin is the monthly update on immigrant visa availability and has taken on even more importance in the past six weeks since the rescission of the October Visa Bulletin.

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