Noteworthy Movement in February

Employment-Based Preference Categories:

India EB-2/EB-3 Flips!

For several months we have watched as the difference in Final Action Dates for EB-2 India and EB-3 India has become narrower. Charlie hinted at the potential for EB-3 India to surpass EB-2 India, and in February 2019 that finally occurs. EB-3 India will have a Final Action Date of April 22, 2009, which is roughly two weeks ahead of the EB-2 India Final Action Date of April 6, 2009. This situation has been created by the current overall low level of EB-3 Worldwide demand, which in turn is likely to make additional EB-3 numbers available for India.

It is unclear if this shift will spur downgrades from EB-2 to EB-3, and what the impact will be on the demand in these two categories. If this phenomenon leads to a significant number of downgrades, it would increase EB-3 India demand and could potentially bring the Final Action Dates for the two categories closer together. As of now, however, the anticipated forward movement through May 2019 for EB-2 India is “up to one week” in contrast to the “up to three months” movement expected in EB-3 India. Based on current demand trends, the Dates for Filing for EB-2 India is May 22, 2009, in contrast with the EB-3 India Date for Filing of April 1, 2010. We will watch this closely in the coming months.

No Flip for China (at least not in the foreseeable future):

The Final Action Date for EB-2 China advances two months to October 1, 2015, and remains ahead of EB-3 China, which advances only three weeks to July 1, 2015. That is not expected to change through May 2019, with EB-2 China expected to advance monthly “up to three months” in contrast with “up to three weeks” of movement for EB-3 China. However, the potential for a future “flip” of these two categories remains possible as according the February 2019 bulletin, the Dates for Filing for EB-2 China will be November 1, 2015, compared to January 1, 2016 for EB-3 China.

Charlie expects that dates for EB-2 China will start to move forward more rapidly to generate additional demand. Although EB-2 and EB-3 China demand declined in December 2018, it is starting to pick up again in January. While the increase in EB-2 China demand has been less dramatic, in the first 15 days of January, more numbers have already been issued for EB-3 China than throughout the entire month of December.

EB-1:

In February, the Final Action Date for EB-1 Worldwide advances two months to December 1, 2017. EB-1 China and EB-1 India advance 8 weeks to February 8, 2017.

The imposition of a final action date across all countries has been a significant concern among employment-based practitioners. Charlie continues to emphasize that this is likely to be “the new normal.” Based on the information provided by USCIS, it appears that there is sufficient EB-1 demand to reach the annual limits this year, which would prevent EB-1 Worldwide from returning to “current” status.

EB-1 China and EB-1 India numbers are being used up at a rapid rate. Charlie believes the EB-1 dates will advance again, with EB-1 Worldwide advancing up to two months, and EB-1 China and EB-1 India advancing up to one month.

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