Visa bulletin for February 2011

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Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

By Michael Phulwani

The following information is provided by the visa office regarding the cut-off dates for the month of February 2011.

Family preferences

F1-Family first preference: Unmarried sons and daughters over the age of 21 years of US citizens. The cut-off date has not moved at all and remains the same for most of the countries, including India at January 1, 2005.

F2A – Family second preference: Spouses and minor children, and unmarried sons and daughters of permanent residents. The cut-off date has not moved at all and remains the same for most countries, including India at January 1, 2008.

F2B- Family second preference: Unmarried sons and daughters over 21 of permanent residents. The cut-off date has not moved at all and remains the same for most of the countries, including India at April 15, 2003.

F3-Family third preference: Married sons and daughters of US citizens and their spouses and children. The cut-off date has not moved at all and remains the same for most of the countries, including India at January 1, 2001.

F4-Family fourth preference: Brothers and sisters of US citizens. The cut-off date has not retrogressed by two (2) years for most of the countries, including India to January 1, 2000.

Employment preferences

EB1 – priority workers: The cut-off date for this category for all countries, including India is current.

EB2 – advanced degree holders: The cut-off date for this category for most countries is current and for India it has not moved and remains the same at May 8, 2006.

EB3 – professional skilled workers: The cut-off date for this category has moved forward by one (1) week to April 1, 2005 for most of the countries, and for India it has moved forward by three (3) weeks to February 22, 2002.

EB3 – other workers: The cut-off date for this category has moved forward by one (1) week to May 1, 2003 for most of the countries, and for India it has moved forward by three (3) weeks to February 22, 2002.

EB4 (certain special immigrants), EB4 (certain religious workers), EB5 (targeted employment programs) & EB5 (pilot programs) is current for all countries, including India.

Retrogression of family cut-off dates

Continued heavy applicant demand for numbers in the Family Fourth preference category has required the retrogression of the Worldwide, China-mainland born, Domi-nican Republic, and India cut-off date for the month of February.

Further retrogressions cannot be ruled out should demand continue at the current levels for some categories and countries.

Please Note:  The applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action.  On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month, compared with the amount of available numbers.  For example, during the past month, over 17,300 of the applicants who have become documentarily qualified in the Family preference categories have priority dates earlier than the cut-off dates established for January.  Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.

USCIS memo on approval of petitions & applications after the death of the qualifying relative

A USCIS Policy memorandum dated December 16, 2010 provides guidance on the approval of petitions and applications after the death of a qualifying relative.

For many years, USCIS had taken the position that the law did not permit the beneficiary of a visa petition to obtain approval of the petition if the petitioner died while the petition remained pending. New section 204(l) of the Act changes this governing law with respect to an alien, who is seeking an immigration benefit through a deceased “qualifying relative.” This section permits the approval of a visa petition or refugee/asylee relative petition, as well as any adjustment application and related application, if the alien seeking the benefit:

– Resided in the United States when the qualifying relative died;

– Continues to reside in the United States on the date of the decision on the pending petition or application; and

– Is at least one of the following?

– The beneficiary of a pending or approved immediate relative visa petition;

– The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;

– Any derivative beneficiary of a pending or approved employment-based visa petition;

– The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;

– An alien admitted as a derivative “T” or “U” nonimmigrant; or

– A derivative asylee under section 208(b)(3) of the Act.

– Detailed information about this new USCIS policy memorandum will be provided in our next article.

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