State Department Announces Employment-based Immigrant Visa Number Retrogression in October 2005

Immigration News Alert ( September 26, 2005 )

EMPLOYMENT-BASED PREFERENCES

The U.S. Department of State (DOS) has issued its monthly Visa Bulletin for October 2005, showing that visa numbers will retrogress significantly for all employment based visa categories beginning on October 1, 2005 . The visa bulletin shows backlogs for all nationalities in the third preference category (Bachelor's degree professionals and skilled workers), as well as in all employment based categories for nationals of India and China , including in the first (executives/managers, outstanding professors/researchers, or persons of extraordinary ability) and second (graduate-degree professionals) preference categories, which have been current for many years.

Visa Number Availability and Priority Dates

The availability of a visa number governs a foreign national's ability to file and complete the final stage of the green card process either through adjustment of status or consular processing. By law, the U.S. makes only a certain number of immigrant visas available each year, and these are allocated amongst the various immigrant visa categories and the countries where applicants were born. Once those numbers have been exhausted, the DOS will set a cut-off date (for example, January 1, 2000), which means that only immigrant visa applicants with a priority date earlier than the cut-off date may be granted an immigrant visa number.

A foreign national's "priority date" is the date that the foreign national's labor certification application is filed with the Department of Labor, or in the case of multinational managers/executives and outstanding researchers/extraordinary ability applicants, the date of filing of the I-140 petition with the USCIS. Therefore, an applicant's priority date essentially determines an individual's place in line to obtain a green card. The priority date is based upon the country in which the individual was born, not his or her country of citizenship. In certain cases, applicants and/or their immediate relatives can be cross-charged to the country of birth of their relatives. For example if an Indian is married to a spouse who was born in the U.K., then the Indian may be charged to the U.K. , worldwide, quota which is more favorable than the Indian quota.

Employment-Based Visa Numbers in October 2005

First Preference (EB-1)

The visa retrogression for EB-1 applicants is quite dramatic: for Chinese nationals applying in the first preference category, the State Department is only processing cases filed before January 2000. For Indian nationals, the DOS is processing cases prior to August 2002. Other employment-based first preference nationalities remain current.

Second Preference (EB-2)

For the EB-2 category (for Master's degree and other advanced degree professionals), Chinese applicants will only be processed if they have priority dates earlier than May 2000. For Indians, the application must have been filed before November 1999. Other employment-based second preference nationalities remain current.

Third Preference (EB-3)

In July 2005, EB-3 applicants (professionals, skilled workers and other workers) saw their visa availability become completely unavailable, meaning that all applicants regardless of their country of birth were unable to adjust their status to permanent residence or obtain an immigrant visa at a consulate abroad. As of October 2005, the EB-3 category will be available again , but its numbers will  still be seriously backlogged. Most nationalities are backlogged to March 2001. Chinese applicants have a May 2000 cutoff, whereas Indians have a cutoff of January 1998. Mexicans and Filipinos have also rolled back to January and March 2001 respectively.

Implications

Individuals who are applying for green card are not able to file their adjustment of status applications or begin the consular processing procedures until their priority date is reached.  This means that an individual may have a labor certification application approved on his/her behalf (if required), obtain an I-140 immigrant petition approval, and then must wait for his/her priority date before being able to proceed to the last step of the green card process.  While waiting for the priority date to be reached, the individual and any dependent family members must continue to maintain their nonimmigrant visa status.  While H-1B nonimmigrant status may be extended indefinitely beyond the usual 6-year limits in certain circumstances while waiting for the priority date to be reached, neither L-1A nor L-1B status may be extended beyond the respective 7-year and 5-year limits on stay.  Therefore, employees who are in L-1B status and who are professionals should be changed to H-1B status, if possible, before they reach their 5-year limit in L-1B status.

Since the wait time for an immigrant visa can now last for several years, employers should make every effort to begin the green card process as soon as possible for those applicants who may be affected. In addition, for those applicants who are already in the green card process, it is even more important that they continue to maintain their nonimmigrant visa status while they are waiting for their priority dates to become current. If you have an employee who falls into this category, please call us to discuss their visa options.

EMPLOYMENT-BASED IMMIGRANT VISA NUMBERS FOR OCTOBER 2005

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers". Schedule A Workers are entitled to up to 50,000 "recaptured" numbers.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers.

Top of Page