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For prospective immigrants seeking to come to the United States on an employment-based visa, such as the EB-2 National Interest Waiver (NIW) visa, the Visa Bulletin has a substantial impact on when your green card becomes available.  The EB-2 visa is an employment-based visa that allows individuals with advanced degrees or exceptional ability in their field to apply for permanent legal status. The EB-2 NIW does not require the applicant to have an employer sponsor and further allows the applicant to avoid the lengthy the labor certification process. As a result, petitioners who seek an EB-2 NIW visa have an opportunity to obtain a green card much more quickly as compared to other types of visas.

What Is the Visa Bulletin?

The United States sets annual limits on the number of green cards that can be issued. Generally, the number of applicants for green cards exceeds the number available. The visa bulletin is issued each month by the U.S. Department of State.  It shows which green card applications can move forward based on when the underlying petition (such as an I-140) was filed. This bulletin can also be used to estimate how long it will take for you to obtain your green card.

When you file an I-140, you are given a priority date. When your priority date becomes “current,” per the visa bulletin, you will be eligible to obtain your green card. As more green cards are approved — and fewer green cards are available overall — the visa bulletin will be updated.

To read the visa bulletin, you will need your priority date as well as your visa preference category.  EB-2 NIW visas are second-preference employment visas. Most applicants can review the column labeled “All Chargeability Areas Except Those Listed.”  However, if you are a national of China, India, Mexico or the Philippines, then you will need to look at the column for your country of origin.

The first chart lists the final action dates for a particular class of visa.  If your priority date is before the date listed on the chart, then a visa is available.  The second chart lists when an intending immigrant can file an application for a green card.  If your priority date is before the date listed in the chart, then you can either file for consular processing (if outside of the U.S.) or adjustment of status.

The Impact of the Recent Visa Bulletin on the EB-2 NIW Visa

The February 2020 visa bulletin contains important information for anyone who seeks to file for permanent legal status through the EB-2 visa process.  For all countries other than China, India, Mexico, and the Philippines, second preference employment-based visa remains current for both final action and filing employment petitions.

This means that applicants who want to file an application to register permanent residence (I-485) along with application for employment authorization (I-765) are able to do so concurrently with their I-140 Visa Petition through, at a minimum, February 29, 2020. Because this category will likely only remain current for an undefined but limited period of time, any foreign national who is interested in filing for an EB-2 NIW visa may wish to consider filing in the near future.  Specifically, Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State recently indicated that Charlie notes that the demand for EB-2 Visas have continued to trend in a manner that will result in a retrogression at some point in the months between March and September, 2020. Once the Date of Filing for the EB-2 Visa is no longer current foreign nationals who wish to file for the National Interest Waiver will not longer be able to file their application for the NIW concurrently with the green card application and remain in the US while awaiting approval without maintaining some other form of immigration status.

Because processing times for EB-2 NIW visas have increased to over a year on average, consideration of filing within the next few months allows an in-status applicant to (a) maintain authorized status during the pendency of the process (b) obtain work authorization valid until the application is adjudicated and (c) obtain a multi-entry travel document also valid through adjudication of the application. Accordingly, if you are present in the US currently and considering filing for a National Interest Waiver application you may wish to meet with an experienced immigration lawyer at this time to design your strategy for the Petition.

How an EB-2 NIW Visa Lawyer Can Help

The February 2020 visa bulletin coupled with Oppenheim’s evaluation of the Visa Bulletin makes it clear that time is of the essence for anyone who seeks a green card through the EB-2 NIW visa process. While the bulletin is current for most foreign nationals, a retrogression would appear likely over the coming months.

At Colombo & Hurd, we represent individuals throughout the world who seek permanent legal status through the EB-2 NIW visa process.  Our experience and knowledge of immigration law allows us to shepherd our clients through the process, increasing the chances of a successful outcome.  Our EB-2 NIW visa lawyers are highly skilled at assisting professionals and people with exceptional ability gain green cards.  learn more or to schedule a confidential consultation, contact us online, or call us at (407) 478-1111 (Orlando), (813) 444-1114 (Tampa) or (305) 455-0590 (Miami).

Alessandro Giordano

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