EB-2 category for all chargeable areas other than China and India remains current; minor forward movement in the EB-3 category.

The U.S. Department of State (DOS) has released its February 2013 Visa Bulletin. The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident or to obtain approval of an immigrant visa at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the February 2013 Visa Bulletin Say?

EB-1: All EB-1 categories remain current.

EB-2: Foreign nationals in the EB-2 category from all countries other than China and India remain current. A cutoff date of January 15, 2008, reflecting forward movement, has been imposed for foreign nationals in the EB-2 category from China. A cutoff date of September 1, 2004, remains in effect for foreign nationals in the EB-2 category from India.

EB-3: There is continued backlog in the EB-3 category for all countries.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: November 15, 2006 (forward movement of 54 days)
India: November 15, 2002 (forward movement of 7 days)
Mexico: March 15, 2007 (forward movement of 42 days)
Philippines: August 22, 2006 (forward movement of 7 days)
Rest of the World: March 15, 2007 (forward movement of 42 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

In November 2012, the EB-2 category for individuals chargeable to all countries other than China or India became current. This means that EB-2 individuals chargeable to countries other than China or India may file an AOS application or have the application approved on or after November 1, 2012. The February Visa Bulletin indicates that the EB-2 category will continue to remain current for these individuals through February 2013.

China

The February Visa Bulletin indicates a cutoff date of January 15, 2008, for EB-2 individuals chargeable to China. This means that EB-2 individuals chargeable to China with a priority date prior to January 15, 2008, may file an AOS application or have the application approved on or after February 1, 2013.

India

In January 2013, the cutoff date for EB-2 individuals chargeable to India was September 1, 2004. This means that EB-2 individuals chargeable to India with a priority date prior to September 1, 2004, may file an AOS application or have the application approved on or after January 1, 2013. The February Visa Bulletin indicates no movement of this cutoff date.

Developments Affecting the EB-3 Employment-Based Category

The January Visa Bulletin indicated a cutoff date of September 22, 2006, for EB-3 individuals chargeable to China. The February Visa Bulletin indicates a cutoff date of November 15, 2006, for these individuals, reflecting forward movement of 54 days. This means that EB-3 individuals chargeable to China with a priority date prior to November 15, 2006, may file an AOS application or have the application approved on or after February 1, 2013.

Additionally, the January Visa Bulletin indicated a cutoff date of November 8, 2002, for EB-3 individuals chargeable to India. The February Visa Bulletin indicates a cutoff date of November 15, 2002, for these individuals, reflecting forward movement of 7 days. This means that EB-3 individuals chargeable to India with a priority date prior to November 15, 2002, may file an AOS application or have the application approved on or after February 1, 2013.

The January Visa Bulletin also indicated a cutoff date of February 1, 2007, for EB-3 individuals chargeable to the Rest of the World. The February Visa Bulletin indicates a cutoff date of March 15, 2007, for these individuals, reflecting forward movement of 42 days. This means that individuals chargeable to all countries other than China or India with a priority date prior to March 15, 2007, may file an AOS application or have the application approved on or after February 1, 2013.

Developments Affecting the EB-5 Employment-Based Category

The December Visa Bulletin predicted that a cutoff date would be established for the EB-5 employment-based category for individuals chargeable to China during the second half of fiscal year 2013. The February Visa Bulletin indicates that no such cutoff date has yet been established.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the February 2013 Visa Bulletin in its entirety, please visit the DOS website here.

The firm's Immigration Practice contributed to this article.