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As China And India EB-2 Availability Date Goes "U," What To Expect, And The Interconnected Fate Of H.R. 3012

by Alan Lee, Esq.

With the "U" for "Unavailable" in the EB-2 category (members of the professions holding advanced degrees or persons of exceptional ability) for China and India in the Department of State's visa bulletin for June 2012, the bad news becomes worse for natives of those two countries qualifying for immigration under the preference. The category has now moved from an available visa date for cases submitted before 5/1/10 in the April visa bulletin to 8/15/07 for May, and the Department now states in the June bulletin that the category will remain unavailable for the rest of fiscal year (FY) 2012. It will become available again on 10/1/12 with the opening of FY-13 when "Every effort will be made to return the China and India employment second preference cut-off date to the May 1, 2010 date which had been reached in April 2012." The Department further cautioned, however, that it was impossible to accurately estimate how long that would take, but current indications were that it would definitely not occur before spring 2013. As related in earlier communication between the Department and the American Immigration Lawyers Association (AILA), the Department had notified U.S.C.I.S. on April 11, 2012, that no further visas in the category would be authorized. The following now appears clear:

1. U.S.C.I.S. will continue accepting I-485 applications for adjustment of status to permanent residence for those with priority dates before 8/15/07 until the end of May.

2. There will be no further I-485 approvals by U.S.C.I.S. or immigrant visa issuances by U.S. consular posts overseas in the EB-2 category to natives of China and India until 10/1/12 unless the visa numbers were previously allocated. (It should be noted that although unused visa numbers are to be returned to the Department at the end of each month, there have been occasions where the numbers have been retained past the time limit).

3. Individuals from the above two countries with EB-2 eligibility who are able to file I-485 applications by the end of May should do so, and those with pending and current I-485 applications should not anticipate receiving approvals in the near future.

With the category coming under such pressure, the focus inevitably returns to H.R. 3012, the "Fairness for High Skilled Immigrants Act of 2011", which would eventually eliminate the per country quota on immigrant visas in the employment based categories after a phasing in period. In our last visit to the topic in early March in our 3 part article, "Examination of EB-2 Visa Demand vis-a-vis H.R. 3012,"
(;;, the bill which had passed the House of Representatives in November 2011 by a vote of 389-15 was still being held up by Senator Charles Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, who was holding out for poison-pill amendments to the H and L visa categories. The bill was being championed in the Senate by Senators Charles Schumer (D-NY) and Scott Brown (R-Mass) who appeared to be vying for credit and were attaching an Irish E-3 visa bill that would allow approximately 10,500 Irish visas in a category akin to H-1B visas for specialized occupation workers, but without the cap quota or U.S.C.I.S. pre-approval requirement of H-1B's.

At this time, the squabbling continues as Senator Brown has dropped his championing of H.R. 3012 and is concentrating his efforts on passage of the Irish E-3 provision. Senator Schumer had previously dropped illegal Irish from eligibility under his version of the E-3 bill, and was still attempting to pass a combination of both provisions. Senator Grassley seemed to be more amenable to Senator Schumer's bill although there were rumors that he wanted to place more safeguards on the Irish E-3 proposal. It was finally rumored that Senator Schumer said that the Democrats were not holding up the bill, but rather Senator Brown who had boasted to his Irish constituents that the Irish visa bill was "about to pop."

But with the gloomy outlook on EB-2 visas for China and India, it is clear that the value of H.R. 3012 passage has become more dear, and that persons and organizations affected by the legislation have further incentive to press their case before Congress. H.R. 3012 and the E-3 provision's marriage of convenience still appears necessary as the chances of ultimate passage for one without the other appears doubtful.

2012 Alan Lee, Esq

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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