Saturday, October 10, 2015

IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The Department of State has just issued the November 2015 Visa Bulletin.  The new revised Visa Bulletin had a devastating impact on those in the US and who qualify as China EB-2, India EB-2, and Philippines EB-3.   We have a detailed analysis of the Visa Bulletin at the end of this blog post.

The Department of State now publishes two Employment-based Visa Bulletin charts each month: (1) Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply). 

The earlier filing of the I-485 has several direct benefits for both employers and employees:
  • Applicants can file for their Employment Authorization Documents (EADs) concurrently with their I-485.  This allows Applicants to take advantage of the AC-21 rule for same or similar employment.  This also allows applicant to work at second jobs.
  • Applicants can file for their Advance Paroles (APs) concurrently with their I-485.  This allows Applicants to travel without having to obtain a new visa stamp.
  • Spouses of applicants can apply for both EADs and APs.  This allows spouse’s work authorization.
  • Fewer H-1B amendments and extensions should need to be filed.  None of the H-1B amendment rules apply to people who hold EADs.

November 2015 Visa Bulletin

Final Action Dates

Employment- Based
All Chargeability Areas Except Those Listed
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01FEB1201AUG06CC
3rd15AUG1501JAN1201APR0415AUG1515JUN07

MU Law Analysis

All: No change from Oct 2015 Visa Bulletin
China: Both EB-2 and EB-3 progressed a few months from Oct 2015 Visa Bulletin
India: EB-2 jumped from 01MAY05.  This trend may continue.  EB-3 continued its steady but slow progress.
MexicoNo change from Oct 2015 Visa Bulletin
Philippines: EB-3 jumped ahead six months. MU Law believes that Philippines EB-3 will steadily move forward in the coming months. 

Dates of Filing

Employment-
Based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01JAN1301JUL09CC
3rd01SEP1501OCT1301JUL0501SEP1501JAN10

MU Law Analysis

The Dates of Filing chart did not change from October 2015.  This is not a surprise.  The USCIS and Department of State have been sued in response to the September 2015 revised Visa Bulletin

The Plaintiffs lost their bid for a Temporary Restraining Order.  If the Plaintiffs were successful, then the USCIS and DOS would have been forced by the judge to revert back to the original September 2015 Visa Bulletin.

The Dates of Filing chart will not change until one of three things happen.  First, the Plaintiffs could be successful in their lawsuit.  However the lawsuit will take many months.  Witnesses will have to be deposed and documents will have to be shared.  Our sense is that the earliest that the lawsuit could be complete is early 2016.

Second, the Plaintiffs and the USCIS / DOS could settle their lawsuit. Similarly, the USCIS / DOS could respond to public and private pressure to change the Dates of Filing.  Several Congressional Representatives have issued statements to the agencies' expressing their frustration with these agencies' haphazard approach to immigration benefits.  

AILA has been working behind the scenes to lobby the agencies for an accurate Dates of Filing chart.  There is a sense among immigration attorneys, MU Law included, that the agencies do not really have a firm grasp of the volume of immigrant visa numbers.  Our evidence for this claim is the seemingly random dates listed on visa bulletins.  The pressure being exerted on the agencies may force the agencies to truly do their job and accurately project Visa Bulletin dates.

Thirdly, the numbers may compel movement. This third path may be the most realistic.  

This is most likely in the Philippine EB-3 category.  As we have seen with the publication of the November Visa Bulletin, the Philippine EB-3 Final Action date jumped ahead six months to June 2007.  This implies that the DOS does not truly know what the demand is for Philippine EB-3 visas.

But we know what the demand is.  MU Law has a very large volume of healthcare-based immigrant visa clients and we know most of heaviest users of healthcare-based immigrant visas and their attorneys.  These clients and friends claim a large portion of the Philippine EB-3 visas.  

Our read is that most (not all) of the Philippine EB-3 priority date recaptures from 2004-2008 have already happened.  We also know that very few Philippine EB-3 immigrant visas were filed between 2009 and 2012. In other words, once the DOS moves the Philippine EB-3 date to 2009, it will have to quickly move that date to 2013.  
Our prediction is that the immigrant visa volume dictates that the DOS will progress the Philippine EB-3 Dates of Filing number in the first half of 2016 and certainly no later than next summer.

5 comments: