More bad news for Indian EB-2 category green card hopefuls – the long-awaited Oct 1 release of the new priority date for filing applications is estimated to be for a much older date of 2006, rather than the previously predicted 2007, liaison officers of the American Immigration Lawyers Association (AILA) announced this week.

Worse, the government expects it to stay at 2006 for quite awhile. In fact, some are fearing a worst case scenario where it could fall back to 2005 later in the fiscal year due to demand.

China, meanwhile, is expected to fare better than India when the new numbers come out Oct 1, but that assessment is still ongoing so an estimated priority date was not identified.

The Department of State (DOS) predicts the rest of the EB-2 category may become “current” in October, meaning anyone with an approved I-140 can file (or concurrently file their case). Or, the priority date may go to early 2012 and then current in the November Visa Bulletin, according to the AILA meeting report.

News of the estimated upcoming priority dates was discussed during AILA’s regular meeting with DOS officials last week.

Indian and Chinese H-1B and other visa holders have been anxiously awaiting news of the estimated EB-2 priority date for the October 2012 visa bulletin to see if they will finally be eligible to file for their green cards. Workers can only file for their green card if the priority date on their I-140 is the same day or earlier than the date named in the DOS Visa Bulletin.

A fixed number of visas are made available at the start of each fiscal year, which begins Oct. 1. The EB-2 category was oversubscribed this year for Indian and Chinese applicants. Currently, the EB-2 category is “unavailable” for both China and India, meaning no one from those countries can submit green card applications, regardless of their priority dates. Other countries are registering a 2009 priority date.

The Department of State cited several reasons for the lagging priority date for India. One is oversubscription, another is the upgrading of EB-3 cases (for skilled and professional workers) to EB-2 (advanced degree workers). The unusual complicating factor this fiscal year, however, is a surprisingly high number of EB-1 applicants. EB-1 is for foreign workers with an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. Normally, the EB-1 category is undersubscribed and its remaining visa numbers at the end of the fiscal year fall down to the EB-2 category for usage. This year, the Department of State expects all of the EB-1 visas to be used up so none will fall down for EB-2 usage.

For EB-3, the worldwide availability should remain as posted for the rest of September. DOS could not predict where it will go in the October Visa Bulletin. Steady progress is expected in FY2013, unless heavy EB-1 and EB-2 usage, which would slow the speed of EB-3 worldwide.

Another complicating factor with predicting priority dates involves upgraded cases – those who initially filed in the EB-3 category, but who then earn a Master’s or other advance degree and become eligible for the EB-2 category. An estimated 10,000-15,000 upgrades are done each year, according to the AILA meeting report. The visa numbers for both EB-2 and EB-3 are held out of the visa pool until the green card is formally approved in one category or the other. Only then is the unused visa released back to its category for usage. Whether the EB-2 or EB-3 number will be used depends on priority dates and visa availability, which is why the unused one is not released until the green card case is approved. This delay in releasing the unused number makes it difficult to predict visa availability from month-to-month.

The DOS Visa Bulletin is available here, so you can check it monthly to see whether your case is eligible to be filed or estimate how long it will be before you can apply for your green card: http://travel.state.gov/visa/bulletin/bulletin_1360.html

While those H-1B holders with more recent priority dates will be disappointed with this news, these workers generally can still maintain their H-1B status based on the unavailability of the immigrant visa number. This means all H-1B regulations, including those requiring you to be paid your wage while benched, will continue to apply to your employment situation. A competent immigration attorney can provide you more information about whether you are eligible to stay in the United States and continue to work while waiting for your priority date to become current.