The State Department released the January 2013 Visa Bulletin last week. Among the items of interest was the disappointing news that the visa cut-off date for the EB-2 category for India remains September 1, 2004, for the fourth straight month since the new fiscal year began in October. This means that cases with a priority date on or before the cut-off date can be processed, all other applications must wait for an available visa. The visa cut-off date for the EB-3 category for India again showed a slight movement of one week to November 8, 2002, from the previous month’s cut-off date of November 1, 2002. Since the beginning of the fiscal year, that’s a movement of a whole month for Indian born applicants in the EB-3 category.

(For those still confused about the visa cut-off dates: the foreign employee’s priority date must be prior to the visa cut-off date published in the monthly Visa Bulletin for the employee to be able to file an application to adjust status, the final step in the process for permanent residence. If the application to adjust status has already been filed, it cannot be approved until the posted cut-off date reaches the individual’s priority date. The priority date is set by the filing date of the PERM application or the immigrant visa petition, whichever comes first.)

The problem for Indian born applicants is the per country limitation. The law limits each country to 7% of the total applicants if a classification is oversubscribed, meaning that there are more applicants in line than the law allows in any one year. Congress set the limit for employment-based visas at 140,000 in 1990, and has not updated the law since then. Because this limit includes not only the employees being sponsored, but each of their family members, the sponsored immigrant requires an average of 2.3 visas, further reducing the availability of visas. The allocation for the EB-2 and EB-3 categories are 40,040 each, and because both have been oversubscribed, the per country limitation has been effective since April 2000. This means that there are 2,803 (7% of 40,040) visas available for Indian born applicants in each of the two employment categories.

Continue Reading Will EB-3 Catch Up to EB-2 for India?