The US Department of State has released the July 2012 Visa Bulletin and it contains some disturbing information regarding the EB-2 category for Philippine nationals. The EB-2 category is reserved for individuals applying for employment based (as opposed to family based) green cards who have at least a masters degree and are applying for a job that requires at least a masters degree. The Department of State has activated a waiting list for EB-2 cases for Philippine nationals (along with residents of other countries) to deal with a surge in the number of applications being filed.
To fully understand the situation and what this means for the future, the background of the green card system must be explained. The US government has established a system in which a limited number of employment based green cards are given out each year. Different countries are allocated different numbers of green cards. If more applicants from a country apply than there are visas available for that year, the applicants are placed on a waiting list.
When a green card case is first filed, it is given a “Priority Date”, which is the date used to give the beneficiary a place in line to wait for a green card. Every green card case is processed in two parts. The first is the processing of the visa petition itself, when the employer asks the US government to issue a permanent visa (green card) for its employee. This is done by USCIS. Once that is approved, the employer and beneficiary must then wait until a visa becomes available. Once a visa becomes available, the second part of the case is then processed. This involves the screening and issuance of the actual card to the beneficiary. This is done by the Department of State. For some cases with no waiting list, the second step occurs immediately.
Each month the US Department of State releases a Visa Bulletin which identifies how long the waiting list is for each of the employment based green card categories. It does this by identifying a cut-off date which represents the last date for which cases are being processed that month. Any case filed before that date may be processed immediately. Any case filed after that date must wait until the cut-off date has been moved up past it, making it “current”.
For several years now, there has been no shortage of visas for EB-2 green card cases for any country in the world other than India and China. The cut-off dates in the EB-2 for all other countries have been consistently “current”, which meant there no waiting for the beneficiary. As soon as the underlying visa petition was approved, the case was forwarded for final processing and issuance of the green card.
In the past year, USCIS has seen a significant increase in the number of cases being filed by employers in an effort to move beneficiaries out of the third employment based preference category (EB-3) (which has seen long waits for all countries), and into the second employment based preference category (EB-2) which has had no waiting lists except for India and China. So many of these cases were filed, the Department of State became concerned it was going to have far too many cases to process this year.
In addition to the country limits, the Department of State also has a fixed total number of green cards which it can issue in any given year for all countries combined. In April of 2012, the Department of State became so concerned about the number of cases which had been filed, completely stopped the final processing of EB-2 cases for India and China.
Apparently that did not resolve the problem, so in June the Department of State announced it will be imposing a waiting line for all EB-2 cases for all other countries of the world beginning July 1. The cut-off date has been set all the way back to January of 2009, nearly three and one half years back. Further, the Department of State warned it may make the EB-2 category for all countries unavailable for the rest of the year.
On its face, this is extremely alarming. However, here is what we believe may be happening. The US government operates on a fiscal calendar that begins on October 1. On that date, a whole new year’s worth of visas will become available. We think that the current retrogression of the cut-off date for EB-2 for the Philippines will only be temporary. We believe the Department of State is trying to get control of the current case load, and is hoping to do so by cutting off the filing of cases for the current year. This will allow for the processing of the current cases without receiving more cases.
We expect that when the new visas become available on October 1, this will clear up the backlog of EB-2 cases for the Philippines and allow the cut-off date to be moved back to “Current”, or at least to the point at which there is a very short wait.
The Visa Bulletin for the following month is normally released during the first week of the month. The first time we will get a preview of what is going to happen with EB-2 cases will be when the October Visa Bulletin is released during the first week of September. Until then we will simply have to wait to see.