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Friday, October 22, 2010

EB-l Strategy Necessary for Chinese and Indian Extraordinary Ability Professionals Part 2

By Charles M. Miller

In Part I. The USCIS Ombudsman 2010 Report gave discouraging news to Indian nationals who were registered as EB-3 professionals or skilled workers predicting "that many thousands of green card applicants of Indian nationality will be waiting years, if not decades. for the approval of their green card cases. " Attorney Charles M Miller forecasted that the same fate was shared by professionals who are Chinese nationals. In Part 2, we explore the nature of the EB-2 and EB-3 backlogs.

The plight of Indian and Chinese-born immigrant registrants is highlighted by remarks made by Charles Oppenheim, Chief of Immigrant Visa Control and Reporting Division at the U.S. Department of State (DOS). His office produces the annual Report of the Visa Office,issues the Visa Bulletin and updates, collects information and statistics from all consular posts for the Visa Office. Mr. Oppenheim was a guest speaker at a recent meeting of the American Immigration Lawyers Associations District of Columbia Chapter meeting. AILA InfoNet Doc.No. 10100165. (Posted 10/01/10).

Mr. Oppenheim described the demand for employment-based visa numbers. The USCIS processes 90% of employment-based immigration cases through adjustment of status.
Beginning in 2008, USCIS Service Centers started to pre-adjudicate cases and request visa numbers, requesting more employment-based visa numbers. This may be attributed to the fact that some registrants in the EB-2 and EB-3 categories were single when their petitions were filed, but they are now married and have children when their priority dates are becoming current. On the average, each immigrant visa case requires 2.5 visa numbers, while in the past the demand was typically one immigrant for each employment-based petition.

Moreover, the employers of EB-3 beneficiaries from India and China have been filing upgraded cases under the EB-2 category. This increases the demand for visa numbers allocated to the EB-2 category for Indian and Chinese nationals.

For these reasons Mr. Oppenheim forecasted that the EB-2 and EB-3 China categories would move slowly over the balance of 2010, e.g. by one or two weeks at a time for the next few Visa Bulletins. He projected that EB-2 India is expected to remain unchanged or to move very slowly forward (by a week or so). This is mainly a result of EB-3 Indian applicants (there are approximately 60,000 pending cases) transferring their priority dates into the EB-2 category and are thus taking visa numbers. Mr. Oppenheim thought that EB-3, India would similarly move very slowly over the next few Visa Bulletins - perhaps by one or two weeks at a time.

In contrast, EB-I China/India cases are not currently subject to the per country quota, because of the cross-over in that category of otherwise unused numbers from other countries. This has allowed 5,000- 6000 visa numbers to be allocated to India and China EB-l when approximately 2,800 would be the normal limit. The remaining unused EB-l numbers "fall down" into the EB-2 categories. That has allowed approximately 20,000 EB-2 numbers for India and nearly 6,500 for China. The availability of these numbers "fall across" strictly in priority date order, not by
country.