For those who may have missed this in my last blog post (See here), there is a potential that the EB-2 category, which includes the National Interest Waiver may no longer be current for ANY country come January 2020. What does this mean?
In order to file the I-485 application, there must be an immigrant visa number available in the category in which you are filing. The Department of State puts out what is called the Visa Bulletin every month. This Bulletin lists each category for a green card (each category that has a limited number of visas, that is) and lists a date for each category. That date signifies that cases filed BEFORE that date are now eligible to receive an immigrant visa number. If, instead of a date, there is a C, that denotes that the category is current, and all applications are eligible for visa numbers. To explain with an example, let us say the date for EB-2 (which includes the NIW) is 2/1/2019 – this would mean that those cases in which the I-140 (NIW) application was filed PRIOR to 2/1/2019 could now file the I-485 application. If the date were C it would mean that even someone filing their I-140 today would be able to file the I-485 with that I-140.
In addition to the above, the date listed in the visa bulletin also must be current for a given case in order for the I-485 to be approved. Again, using the example above, let us say we filed the I-140 on 1/1/2019 with the I-485, and our interview is scheduled for 1/15/2020. On 12/15/2019 a new visa bulletin comes out that says the new date for EB-2 is 12/30/2018. Our case is no longer current, therefore even though we have an interview scheduled, the I-485 cannot be approved (to be fully clear, it is possible that USCIS requested the visa number PRIOR to the backlog, so it could still be approved because a visa number was allocated, but lets assume that did not happen).
In general, China and India have had backlogs in the EB-2 category for many years now. The catch-all listing for all other countries is generally current (listed as a C). However, in most fiscal years, towards the end of the year (the year ends on September 30, so around July or August) the catch-all listing will backlog as USCIS has used all the immigrant visas in that category. However, at the beginning of the next fiscal year (October 1) it will come current again. If, in fact, the EB-2 category does backlog for the catch-all listing, then this could mean that it will remain backlogged for the foreseeable future. This just happened for the EB-1 category less than 1 year ago – it became backlogged early in the fiscal year and has remained backlogged about 1 to 1.5 years for the catch-all listing since that time.
However, it is important to realize we do not know yet if it will backlog in January, or February or later. Much will depend on the usage statistics for November (and December). We will know more around December 15, when the January visa bulletin is released. We will update you then.
If you are thinking of filing the I-140 and I-485 simultaneously, then you would need to immediately begin getting all documents together as you may no longer be able to do that come January 1, 2020. Call us with any questions.
Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.