Significant Movement for EB-2 India in Department of State's July Visa Bulletin

The July 2014 Visa Bulletin has been released by the U.S. Department of State (DOS), and as reported by Charles Oppenheim of the State Department's Visa Office, the EB-2 category for foreign nationals from India pursuing the permanent residence process will move forward significantly on July 1, 2014. The new cutoff date as of July 1 for EB-2 India will be September 1, 2008. The cutoff date for this category in the June 2014 Visa Bulletin was November 15, 2004.

The Visa Office indicates that there will be continued movement of the EB-2 India category over the next couple of months. Additionally, with this movement, USCIS has started to issue Requests for Evidence (RFEs) on I-485 applications asking for updated medical examinations based on the new USCIS policy that limits medical examinations to a one-year validity period.

Update on Priority (Cutoff) Date Movement

The July 2014 Visa Bulletin was recently released by the DOS, which publishes this monthly report outlining the visa availability for individuals seeking permanent resident status in the U.S. The Visa Bulletin is used as a guide for the issuance of immigrant visas at U.S. consulates overseas and to determine whether an Application to Register Permanent Residence or Adjust Status ("green card" application) may be accepted or adjudicated by U.S. Citizenship and Immigration Services (USCIS).

For employment-based (EB) permanent residence cases, the dates published in the Visa Bulletin refer to the priority or "cutoff" date assigned to foreign nationals as they begin the permanent residence process. For EB immigrant petitions, the priority date is determined by the earlier of either the date an Immigrant Visa Petition (Form I-140) was filed with USCIS or the date a Labor Certification Application (PERM) was filed with the U.S. Department of Labor. Once this date becomes current, the beneficiary is then eligible to file a green card application with USCIS or an immigrant visa petition with a consulate or embassy abroad.

As initially reported by Oppenheim, the EB-2 category for foreign nationals from India pursuing the permanent residence process will significantly move forward on July 1, 2014. The new cutoff date as of July 1 for EB-2 India is September 1, 2008. The cutoff date for this category in the June 2014 Visa Bulletin was November 15, 2004. Although there was some movement across other employment-based categories in the July 2014 Visa Bulletin, none are as significant as EB-2 India. For example, EB-3 India moved from October 15, 2003, to November 1, 2003, and EB-2 China moved from May 22, 2009, to July 1, 2009.

Additional details about EB-2 India and all of the employment-based categories is available in the July 2014 Visa Bulletin.

More EB-2 India Movement Ahead

The movement in the July 2014 Visa Bulletin is confirmation of recent statements from Oppenheim with respect to visa demand and more possible movement of the Visa Bulletin. Recent reports expect additional movement over the next couple of months. More information about additional movement and then possible retrogression for EB-2 India will likely be announced at the annual conference of the American Immigration Lawyers Association, which will be held in Boston next week. We will provide further updates as additional information is released by the State Department and USCIS.

USCIS Issuing RFEs and Limiting Medical Exam Validity to One Year

With this significant movement, as well as the new policy from USCIS where medical examinations will only remain valid for a one-year period, USCIS has started to issue Requests for Evidence (RFEs) on pending I-485 adjustment of status applications that have or will soon have current priority dates under the Visa Bulletin. The RFEs that have been issued by USCIS have requested updated medical exams, as well as updated confirmation of employment letters. Other documents that USCIS has been requesting in this recent round of RFEs include updated status and employment authorization documents since the filing of the I-485 adjustment of status application, as well as further documentation if the foreign national employee has changed employers or positions based on the AC21 portability rules. It is expected that USCIS will continue to send out such RFEs in advance of the priority date becoming current so that as many I-485 applications can be processed and approved during the time period that the EB-2 India category remains current. 

As outlined above, as of June 1, 2014, USCIS will limit the validity period of all Forms I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. USCIS indicates that it will provide additional ways to submit Form I-693 to comply with this new policy guidance. USCIS reports that this updated policy applies to any Form I-693 supporting a benefit application that USCIS adjudicates on or after June 1, 2014.

More information about the new policy guidance on medical examinations is available from USCIS at:

USCIS Issues New Policy on Form I-693, Report on Medical Examination and Vaccination Record

Review of Medical Examination Documentation

I-693, Report of Medical Examination and Vaccination Record

Conclusion

Employers and foreign national employees should act now if an RFE is issued by USCIS. Under the new USCIS policy on medical examinations, I-485 applicants will need to return to their civil surgeon for updated medical examinations. Once USCIS has obtained the requested information from the RFE on the I-485 adjustment of status application and it is deemed sufficient, USCIS can then process and approve the I-485 adjustment of status applications for foreign national employees and their family members during this window of time where the priority date is current. Since it is unclear how long this window of opportunity will be open before EB-2 India may retrogress ("go backwards"), it is best to act as quickly as possible with this movement for EB-2 India.