EB2 Retrogression

[Attorney_6]

Many people have questions about EB2 India Retrogression in the November Visa Bulletin. This week, Murthy Law Firm attorneys will answer questions related to the impact of retrogression and options for those faced with retrogression-related delays.

 

RULES FOR TOPIC OF THE WEEK THREADS:

1. Attorney’s postings contain general information only and are not a substitute for case-specific legal advice.
2. The attorney will answer only those questions that relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate section of the forum.
3. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions.
4. Please do not include information that would identify any specific company, university, or individual (including yourself).

[mohanbabu400]

What is the prediction for EB2 india moving forward?

[Attorney_6]

The cut off date is not expected to move forward until the end of the 3rd quarter of the fiscal year (FY) or start of the 4th quarter of the FY. So, June or July 2015. That is the point in the FY that any excess numbers from the other categories are shifted around and made available to the oversubscribed EB2 India and China. The amount of the advancement depends upon the volume of such "extra" numbers.

[G2_India]

Friend got his GC recently under EB2 , spouse was in India and 485 not filed - PD retrogressed by three years this month. Can he file both I-130 F2A and I-824 hoping dates becomes current. Any issues with concurrent filing, which is best or filing both is wise? Answers are much appreciated.

[Attorney_6]

G2,

YES, a person in that (unfortunate) situation could and should file BOTH the F2A I-130 and the I-824 (on the EB2 case.)

 

There is no conflict in taking that approach at all, the spouse is eligible under both the family category as the spouse of an LPR, as well as still being eligible as a derivative in the EB case. Since priority date movement is uncertain in both EB and FB cases, it makes sense to pursue both and just take whatever comes first!

[G2_India]

Thank you for your response.

[kbamar83]

Hello there,

According to current estimate when will PD of Feb 2011 become current?

[Attorney_6]

Kbamar,

 

The predictions are not that specific. There are many variables that impact the movement of the cut off dates. The Department of State does not have completely transparent data from the USCIS, particularly with regard to the EB3 to EB2 "upgrade" cases.

 

At this point, we just know that the EB2, India, dates are not expected to move until June/July 2015. There is not a prediction as to how far forward they will move at that point. While the recent forward movement resulted in many I-485 case approvals, there are still many, many cases pending in EB2 with old priority dates.

[permaudit]

Would there be change of any EB2 movement, if (highly improbable) there is a Executive Order for legals? If so how soon could that be in effect?

[Attorney_6]

There would not likely be a connection between EB2 and any relief for undocumented foreign nationals. There are other issues which have been mentioned as potentially falling under the Executive Order option which would impact EB2. One of these is the recapture of unused "lost" visa numbers from many years ago, and making them available now. Depending upon how many such numbers became available, it would help to ease things temporarily.

 

The other issue that has been discussed which would make a huge, long term, difference is changing from needing one visa number per person to one per family in GC cases. Since many EB cases involve the primary as well as a spouse (and sometimes a child or two), making this change would be HUGE.

 

But, all of this has been talked about, debated, proposed, promised etc for a long time. So, everyone can hope for the best, but keep making plans and strategies based upon the current situation.  

[imigrationteam21]

I have a question!

My son got a job at Microsoft and is a sophomore at UT Austin, he is currently is on H4 and wants to change to F1 as he can work at Microsoft. I have my EB2 priority date on june of 2011 and I am done with two stages (till I-140). Do you recommend changing him to F1 or should I keep him under H4 as he will the GC someday -- when ever that is?

 

Does the new EAD for H4 apply to children too, as I know my spouse can work?

 

If I change him to F1 can I still add him during the GC process. Do I have to change him back to H4 if GC process is moving... How long does it take to switch from one status to other

 

Thanks in advance for the response..

[Attorney_6]

Team 21,

As an initial matter, this is a public forum. So, while there are lots of people who work at a certain large tech company in Redmond, as well as many people who attend a large state university in Austin, it would be best not to provide such specific, identifying details.

 

1. The EAD for H4s is still only a proposal, it is not effective as of yet. It only applied to spouses, not kids.

2. If a person is eligible as a derivative beneficiary in the GC case, they remain eligible even if they are not in dependent immigration category. No need to change back to H4---and H4 is limited to under 21.

3. It would be best to go over the details in a consultation. However, as a general matter, and since nothing is certain until the GC is approved, it normally is worth considering the change to F1 to allow for college students to gain the work experience that they will need to compete after graduation.

[reddy183]

Hi, I have PD of Jun2012 under EB2. I am a contractor and got an offer for fulltime. I am changing my employer and now with Obama's executive action plans, I am quite confused what to do. It is difficult to get a sponsorhip for a FTE for our jobs in biotech field. I did let go last year when the comprehensive bill was passed in senate last year thinking that house would do the same. Again i got an opportunity now.

 

Any suggesstions on what is the situation and what is the better thing to do. Even though Obama uses executive orders, what are the chances that it will effective immediately and everybody getting GC in next 6 months.

[ashuneel]

Obama's executive actions have nothing to do with legal residents who are in non-immgrant category. Follow normal application process for GC.

[Attorney_6]

Reddy183,

The executive order information is scheduled for release on Thursday night. Of course, it is hard to know how much detail will be provided, as opposed to an overview. However, we should have at least a good idea of where the benefits lie at that point.

 

As an general matter, one should never rely on proposals, draft legislation etc. We always tell people to make their plans and move forward based upon the current immigration system, rather than depending upon hopes for various changes.  I always tell people to just put themselves in the best position possible to benefit from any potential changes or brief periods of opportunity.

 

While we hope there will be some benefits---direct or indirect-- which will apply to our typical type of client/reader, it is hard to image that "everyone" will get a GC in six months.

[kbamar83]

Hello Attorney_6,

Is there any update regarding the EAD for H4. What is stopping the USCIS from declaring it. Do they have a time frame in mind?

[ashuneel]

Hello Attorney_6,

Is there any update regarding the EAD for H4. What is stopping the USCIS from declaring it. Do they have a time frame in mind?

That law is still pending and has not taken effect.

[ashuneel]

Hello Attorney_6,

Is there any update regarding the EAD for H4. What is stopping the USCIS from declaring it. Do they have a time frame in mind?

I personally think the congress will not pass that bill giving EAD to H4.

[Attorney_6]

Kbamar,

 

There isn't any update on the H4 EAD proposed regulation. It is not at all clear why this was delayed.

[am2622]

Hi

I have EB2 (STEM) PD of July 2013, I keep getting options to change my job in the same field (non-tech) with tremendous scope of growth both career wise and financially. Was expecting something +ve from Obama last night but I doubt much is going to change any sooner.

 

Is it advisable to change my joba and move up the ladder?

[Attorney_6]

The H4 EAD is a regulation change, not a law. It is enacted administratively, by the agency--not legislatively, by congress.

 

The H4 EAD is listed as one of the executive actions (multiple changes, including the executive order). The releases show that it will be enacted in the near future---with a projection of December or January.

[Attorney_6]

The executive ACTIONS do have important items for non-immigrants/EB immigrant candidates. But, some of these intended actions which would help those awaiting visa numbers will require regulatory changes.

 

We will be posting more on MurthyDotCom shortly and providing updates and analysis as this moves forward.