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EB-2 India: The Great Leap Forward

31 May

By Gary Endelman

“The Department of State has told AILA that because of decreasing demand for EB-1 visa numbers, the EB-2 category will be given at least 12,000 additional visa numbers. The 12,000 numbers will largely be given to Indian EB-2 applicants. EB-2 Chinese natives may also be positively impacted by this news.

The May 2011 Visa Bulletin, which should be released in mid-April 2011, should reflect this news.”

Immigration guru Chris Musillo posted this news flash on ILW. What better place for it!

All those with approved I-140s but no current priority date should take out their  old files  and dust them off because a race to the Texas and Nebraska Courthouse will likely soon begin. Expect the starter’s gun to sound on May 1.

EB-2 India is now choking dust back to May 8, 2006 and has not been showing signs of life lately as we all know. Although H-1B workers caught in this dead zone are able to get annual H1B extensions, or, better yet, 3 year extensions if  they have approved I-140s, the prospect of being able to move to the head of the line and apply for the green card has become a mirage, a shimmering illusion off in the distance, perhaps even a cruel joke on all those who wait for Godot.

There is nothing in the INA or 8 CFR that would prevent the USCIS from accepting the I-485 as a provisional submission following approval of an I-140 or I-130 in the absence of a current priority date as Cyrus Mehta and I have previously argued in our essay appropriately entitled ” The Tyranny of Priority Dates”. In effect, this is a logical extension of pre-adjudication for adjustment of status cases now being done.  Drawing the analogy from patent law which allows a provisional patent to be submitted and allows one year for perfection of same, the USCIS could, if wanted to, adopt the same approach to remedy the implosion of our immigration preference system.  Allow provisional submission of an adjustment following I-140 or I-130 approval, along with companion applications for advance parole and EAD, but do not allow final approval unless and until the priority date becomes current. Only then does the I-485 actually get filed. Right now, without Congress creating a single new visa or touching the quotas in any way, the priority date problem can be solved.  President Obama has the discretion if there is the vision and political will to use it. http://www.ilw.com/articles/2010,1220-mehta.shtm

Till then, take heart in small victories and the anticipated great leap forward of EB-2 India in May is certainly one of those. What better way to usher in the springtime!