The Visa Bulletin for February
2012 shows continued advancement of the priority date
cut-offs for chargeability to China and India for the second
preference employment based (EB-2) category. The cut-off date for
both China and India advanced one year to January 1, 2010. This
follows priority date advancement of 9.5 months for the January
2012 Visa Bulletin in these same categories. As we've indicated
in previous alerts, this advancement is a result of low demand this
fiscal year for immigrant visas in the employment-based First
Preference (EB-1) category (for
persons of extraordinary ability, outstanding researchers or
professors, and multinational managers and executives). Unused
immigrant visas in the EB-1 category flow down into the second
preference immigrant visa (EB-2) category, which can now be used to
advance the backlogged EB-2 categories for China and India. The
second preference category is for persons filling positions that
require either an advanced degree or a bachelor's degree and at
least five years of experience.
The immediate impact of this advancement is that on February 1,
2012, any foreign national born in China or India with a priority
date of January 1, 2010 or earlier who has an approved or pending
second preference I-140 immigrant petition, is eligible to file an
I-485 adjustment of status application. Dependent family members
may also apply for adjustment of status. Assuming no amended Visa
Bulletin is published between now and February 29, 2012, I-485
applications will be received by U.S. Citizenship and Immigration
Services (USCIS) through the end of February. It is important
to file I-485 applications in February while immigrant visa numbers
are available because we do not know what will happen with the
cut-off dates as we progress further into the fiscal year. The
large volume of I-485 applicants to be received by the government
in these categories in January and February of 2012 could force the
Department of State (the agency charged with determining the
cut-off dates and publishing the Visa Bulletin) to retrogress the
cut-off dates, or even make visa numbers in the second and third
preference altogether unavailable for individuals who are from
China or India. This would mean that individuals with current
priority dates in February could be ineligible to file adjustment
of status applications in March. Applicants for adjustment of
status are eligible to apply for important benefits, including
employment authorization and travel permission or "advance
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On November 14, 2013, after much controversy in the past years, the USCIS has finally clarified in its Policy Memorandum (PM-602-0093) that certain individuals who entered the U.S. pursuant to the Visa Waiver Program (VWP) may apply for Adjustment of Status in the United States, including those who violated their 90-day term of stay.
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Employers of foreign nationals should note that registration for the Fiscal Year 2015 Diversity Visa ("DV") Lottery opened yesterday, October 1, 2013, at noon (EDT) and will remain open until noon (EDT) on Saturday, November 2, 2013.