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Retrogression for EB-2 Petitions from India

Written By The Shapiro Law Group on February 15, 2014

Many foreign nationals from India were disheartened to learn that the priority cut-off date for the EB-2 work visa recently retrogressed by nearly four years, further delaying the approval process.

Foreign nationals seeking a green card may be able to apply under the EB2 category if they are members of a profession that requires an advanced degree. One of the most common ways for a sponsored individual to qualify for the EB2 category is a showing that the employees needs an individual with an advanced degree, such as a master’s or doctorate, to fill a vacant position and the sponsored individual possesses that degree.

Alternatively, a sponsored individual may qualify for the EB2 category if (1) he or she has a bachelor’s degree (or its foreign equivalent) AND five years of post-degree experience; or (2) he or she has exceptional ability in the sciences, arts, or business, and will substantially benefit the national economy, cultural or educational interests, or welfare of the United States.

Each month, the Department of States sets priority cut-off dates from various visa categories, and last November, the EB-2 category retrogressed by nearly four years – from June 15, 2008 to November 15, 2004 – for petitions from India. The latest Visa Bulletin from the Department of State indicates that the priority cut-off date for EB-2 petitions from India remains unchanged at November 15, 2004. As a result, green cards cannot be obtained for EB-2 Indian nationals with a priority date after November 2004.

The likely cause of the retrogression is an unprecedented demand for EB-2 visas from India. According to some estimates, from November 10, 2013 to November 20, 2013, the Department of State received approximately 150 new EB-2 visa petitions per day from India, many of which were upgrades from the EB-3 category.

In some cases, a foreign national may be eligible for more than one employment-based visa classification, such as an EB-2 and EB-3 category. In these cases, the applicant can file an I-140 in concurrent classification if he or she chooses. Alternatively, if the applicant already filed an I-140, he or she may wish to file a subsequent I-140 to change their visa classification from EB-2 to EB-3 if the cut-off date of one category has surpassed the cut-off date for the other.

Currently, the cut-off date for EB-3 petitions from Indian remains at September 15, 2003, but should the cut-off date for Indian EB-2 petitions further retrogress and the EB-3 cut-off date progress so that it surpasses the EB-2 cut-off date, Indian foreign nationals may wish to file a subsequent I-140 in order to seek the more recent priority cut-off date. Filing a subsequent I-140 for a new category is permitted by the U.S. Citizenship and Immigration Services (USCIS) provided that the applicant qualifies for both preference categories.

The Chicago employment-based immigration attorneys at the Shapiro Law Group have been helping foreign national employees obtain the appropriate work-related visas for more than 30 years. We can help you determine whether you qualify for another preference category with a more recent cut-off date and can assist you with the filing of a subsequent I-140.

If you are an employer or employee in need of immigration assistance, do not hesitate to contact us at (847)564-0712 to speak with an experienced and qualified Illinois employment immigration attorney.