EB-2 India Moves 3+ Yrs Forward - What Does It Mean?

The State Department has advanced the priority dates in August 2013 for EB-2 India to January 1, 2008.  This represents a jump forward of more than three years from the current date of September 1, 2004.  The State Department has explained this action as follows:

“India Second:  This cut-off date has been advanced in an effort to fully utilize the numbers available under the overall Employment Second preference annual limit.  It is expected that such movement will generate a significant amount of new India demand during the coming months.
These changes for the Family F2A, and India Employment Second preference categories reflect actions which have been taken based on current applicant demand patterns.  Readers should expect that some type of “corrective” action will be required at some point during FY-2014 in an effort to maintain number use within the applicable annual limits.  Such action would involve the establishment and retrogression of such cut-off dates, and could occur at any time.”

What this means, in practical terms, is that the two agencies which approve permanent resident status (State Department through the immigrant visa (“IV”) process, and USCIS through the adjustment of status (“AOS”) process) have found a need to encourage more people to apply for permanent resident status based on the number of visas available in that category and the number of applications approved each fiscal year.  It does not mean that the date will move forward in a predictable fashion, and in fact it means that it could remain at that date or even “retrogress” and move backward. 

What will happen is that as of August 1, 2013, all those applicants with priority dates between September 2, 2004 and January 1, 2008 will be able to 1) apply for an IV or AOS; and 2) be approved for an IV or AOS while the dates remain current for their priority date.  The State Department and USCIS will then monitor how many cases each agency approves and receives, with a view toward issuing all the visas available for EB-2 India during the 2014 fiscal year which begins October 1, 2013 and ends September 30, 2014.  If, after a few months, the demand is high (meaning a lot of applications are approved and also filed during that time), then I would assume that the State Department would not move the priority dates forward and could in fact retrogress the numbers.  If, however, the demand is not as high as they anticipated, then State Department will again move the dates forward to some date which they believe will generate the necessary applicant demand.  Since AOS cases take about 4-5 months to be approved right now, it is likely that the number usage will not be known until the end of the year or early next year.

This process is a bit like opening the door to a series of rooms, representing those with certain priority dates, not knowing how many people are actually in that room before you open the door, and inviting them into a large hall.  Also, some people might not want to come out.  The hall can only accommodate a certain number of people (representing the visa quotas), and so instead of opening all the doors at once, they open certain doors of the rooms of those waiting the longest to get into the hall.  As they count the number of people coming out, they may decide to close some doors (representing retrogression), or open up more (representing forward movement).  This is how our visa priority date system works, or doesn’t work, depending on your point of view.

Forward movement is indeed good news for those with priority dates near the current published dates, but it doesn’t mean that if you are one month away, for example, that it will just be another month of waiting.  It depends on how many people come out of the rooms, and how many are eventually approved for residence during the fiscal year.