State Department provides EB-3 and EB-2 priority-date outlook for coming months

Among the noteworthy predictions for employment-based preference categories, the priority cut-off dates for the EB-3 category for China and Rest of World will advance rapidly in the coming months, which will likely cause high demand and a hold or retrogression. This is according to a monthly briefing on Feb. 10 by Charles Oppenheim, the U.S. State Department’s chief of the Visa Control and Reporting Division.

The EB-2 India category, which will jump forward by 16 months in March, is also likely to continue to advance at a moderate pace this fiscal year, although the movement could slow toward the end of the year if upgrades from EB-3 to EB-2 increase. In order to upgrade or downgrade to a different preference category, an employer must file a new I-140 immigrant visa petition on behalf of the foreign applicant who must have an already approved I-140 immigrant visa petition. This allows the foreign national to recapture the old priority date and maintain the same priority date in the new preference category.

For Chinese nationals, the opposite trend is occurring: the EB-3 cut-off date is advancing faster than the EB-2 category, causing many to downgrade from the EB-2 to EB-3 category. The downgrades are likely to cause another jump in the priority date for EB-2 China in April and increase demand in the EB-3 category. As a result of the growing demand, a hold or retrogression in EB-3 China is anticipated at some point in the future, according to Oppenheim. In turn, such corrective action to the EB-3 China priority date and a jump in the EB-2 China category would spur demand for EB-2 China and then impact that cutoff date as well.

A similar trend is likely for EB-3 Rest of World, whose priority date advanced by seven months in February and will move forward five months in March. The rapid advancement could cause a spike in demand that may require a hold or retrogression in the cutoff date.

BAL Analysis: Employers and foreign nationals should consider these trends, particularly the relationship between EB-2 and EB-3 priority date movement, in their business planning for the coming months. The priority date movement does allow many foreign applicants to file for I-485 adjustment of status, which provides various benefits, including the ability to secure employment authorization documents and advanced parole for all applicants. This is true even if the I-485 applications ultimately remain pending for a longer period of time because of priority date retrogression. A pending I-485 cannot be adjudicated if the priority date has retrogressed.

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