Visa bulletin analysis

India EB2 to open again in April?

Posted March 4, 2008

Based on current demand from USCIS and consuls overseas, and a reallocation of visa numbers among preference categories, we expect the State Department to announce shortly that India EB2 will open again in April. The category will still be backlogged - perhaps to December, 2003 - but at least it will be available.

This is a surprise development. The February Visa Bulletin had announced that India EB2 would remain unavailable for the remainder of the fiscal year. Unfortunately, demand still exceeds supply for India in both the second and third employment based category. Expect very slow movement for years to come.

March visa bulletin here

Posted January, 9, 2007

India 2nd Preference UNAVAILABLE for rest of year!

The February visa bulletin contains the bad news - "U" for India EB2:

D. INDIA EMPLOYMENT SECOND PREFERENCE HAS BECOME “UNAVAILABLE”

Despite two retrogressions of the India Employment Second preference cut-off date, demand for numbers by CIS Offices for adjustment of status cases has remained extremely high in recent months. As a result the annual limit for the India Employment Second preference category has been reached, and the category has become “unavailable” effective immediately.

Why did this happen?

It's all about inventory management. In a perfect world, the USCIS would accept adjustment of status applications, and process them in an orderly fashion - first in, first out as required by law. Visa numbers would be used as cases were completed. And as visa numbers were used, the State Department would analyze the demand, and set priority dates in the monthly visa bulletin so the inventory of the USCIS and US Consuls overseas would be replenished at a sufficient rate to allow all the employment based visa numbers to be utilized each fiscal year.

But the world is not perfect. Sometime in the not too distant past, the USCIS quit processing their inventory in a predictable fashion. Completion of cases somehow stalled or stopped. The USCIS developed an inventory of 100s of thousands of adjustment applications it wouldn't - or couldn't - complete. In the meantime, new cases got filed. In mid 2007, at its current rate - and according to its own predictions - the USCIS indicated that it would not complete enough adjustment of status applications to use half the available employment based visa numbers.

That's when the State Department made virtually all categories "current" - and that's when the USCIS decided to start adjudicating cases in what was a wild - and ultimately ineffective - attempt to stop their "shelf inventory" from growing even worse.

The result:

USCIS actually completed more adjustment of status applications in 30 days than they had managed in the previous eight months - using an entire fiscal year's worth of visa numbers;
And with another 300,000 or so new adjustment of status cases filed in July and August, 2007, the USCIS "shelf inventory" grew anyway.
The utilization of visa numbers is now within the control of the USCIS. The State Department is in a totally reactive role as USCIS completes cases using criteria which are at best opaque.

So............. despite efforts by the State Department to set a priority date cutoff to allow visas to be issued in orderly fashion to the oldest cases first over the course of the fiscal year - and not withstanding that the India EB2 category was retrogressed twice - USCIS utilized the entire fiscal year's worth of India EB2 visa numbers in just over three months.

Will India EB2 open up again?

Yes - but probably not before October 1, 2008. It is possible that EB2 India could open up again before - State is exploring several possibilities, including utilizing unused EB1 numbers. However, any movement is very unlikely before the second half of fiscal year. For planning purposes, assume that India EB2 will remain unavailable through September 30, 2008 - but that if it opens up again, the date will be a long way from "current."

Could it happen in other categories?

Yes - it is in the hands of the USCIS.

Is India EB3 now better than India EB2?

Probably not - at least for newer priority dates.

And was this legal????

Maybe not. Section 203(e) of the Immigration and Nationality Act provides that employment based visas are to be made available "in the order in which a petition in behalf of each such immigrant is filed with the Attorney General...."

We know that the USCIS has adjudicated newer cases ahead of some older cases - some of which have been on their shelf for years. On the other hand, the "rapid" action of the USCIS has meant that some lucky applicants had their cases completed months or years earlier than otherwise might have been the case.

Posted December 11, 2007

January visa bulletin - retrogression India EB2

There has been very heavy demand this fiscal year for EB2 - particularly form India and China. Demand from India has been so high, that visa availability for India EB2 has retrogressed to January 1, 2000 and is actually behind India EB3. The State Department is predicting that EB2 visas for India will be exhausted before the end of the fiscal year, and there may be unavailability or further retrogression in this category.

Posted November 15, 2007

December visa bulletin - retrogression for EB2

Visa numbers in the second preference have retrogressed in December. "Demand during October and the first week of November has already used over 38 percent of the annual limit. It is hoped that the December retrogressions will return monthly number use within the target range. If not, further retrogressions cannot be ruled out."

Posted August 15, 2007

September visa bulletin - still waiting

The September visa bulletin was delayed - and is now expected to be posted later today. There should be some visa availability in employment based categories for much of the world. Overseas posts returned an unexpected number of visa numbers in July.

The October visa bulletin will show availability in all categories, for all countries, but expect cut off dates.

Posted August 2, 2007

Future visa availability

As of today, the USCIS has not returned enough visa numbers to have an impact on employment based visa availability for September. The September visa bulletin should be published around August 8th or 9th, and we predict "U" across the board in employment categories.

Our best prediction at this time:

In October - with the start of the new fiscal year - the situation changes. Worldwide, the first, second, fourth and fifth employment preference categories should be current. Third preference will have a cutoff date - and there may be cutoff dates for India and China in both second and third preference categories. We expect worldwide 3d preference to be backed up to mid 2002, and India to be mid 2001. India 2nd preference may be around January, 2003. If China 2d prefernce is backlogged, the cutoff date should be around April, 2005.

Movement within preference categories for the remainder of the year will depend on how the USCIS requests visa numbers, and how they are able to deal with security clearance issues. IF USCIS uses its "new" practice of requesting visa numbers in advance of obtaining security clearances, movement may be very slow, and categories may retrogress further. If they go back to requesting visa numbers when an application is actually ready to be approved, AND if the logjam in security clearances continues, the USCIS demand for visa numbers will fall, and categories will advance substantially again.

But make no mistake. The actual demand for visa numbers far exceeds the supply. And filing a 485 application does not mean that a "green card" will be issued in the near future. See our analysis of how long a wait those who have already filed may still have.

Posted July 17, 2007

They're back .... CURRENT AGAIN

From the August Visa Bulletin:

D. JULY EMPLOYMENT-BASED VISA AVAILABILITY

After consulting with Citizenship and Immigration Services, the Visa Office advises readers that Visa Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining Employment visa number availability, and that Visa Bulletin #108 (dated July 2) is hereby withdrawn.

August numbers show unavailable.......... but........

USCIS has announced that it will accept adjustment of status applications based on the July visa bulletin - through August 17, 2007. Applications already filed during the month of July will also be accepted. And not withstanding the new fee schedule effective on July 30th, I-485 filing based on the July visa bulletin will be subject to the current fee schedule.

And why this happened? We'll take the USCIS at its word:

"The public reaction to the July 2 announcement made it clear that the federal government’s management of this process needs further review," said Emilio Gonzalez, USCIS Director. "I am committed to working with Congress and the State Department to implement a more efficient system in line with public expectations."

And what it means?

Anyone with an approved labor certification, or a claim to preference classification, other than "other workers" can file an application for adjustment of status if otherwise eligible
These applications will end for many years unless there is a change in the law
It may be a very long time before this opportunity will come again

If you are eligible to file under the July visa bulletin, take action now!

Posted July 17, 2007 4:30 pm EDT

Visa numbers coming back????

The State Department will publish is delayed August visa bulletin within the next hour. The USCIS will publish its "resolution" of the July visa debacle. We will post links and analysis as soon as available. Expect the "update" of July numbers to be revised. We expect visa numbers to become available again! We would not be surprised if the USCIS delays implementing new fee schedule for I-485 filing.

Posted July 16, 2007

Today's Wall Street Journal (Page A2, and online) suggests an announcement is imminent regarding the I-485 July visa mess:

"People familiar with the situation say that officials are working out the final details of a plan that would at least partially rectify the problem.

It isn't clear, however, whether the immigration agency will now accept all applications and process them later, accept only those that have arrived, or come up with some other approach."

We have been hearing rumors of ongoing high level meetings at USCIS since the middle of last week - and have heard that an announcement would be made "today" - starting last Thursday. We believe there are meetings. We believe that "solutions" are being debated. All else remains speculative.

Our personal belief is that USCIS must accept the applications received on July 2nd - at least - as visa numbers were still available on that date. And if they don't accept all applications filed in July, litigation and uncertainty will continue for years to come.

Posted July 11, 2007

Visa numbers WERE available July 2nd!!

We have confirmed with a knowledgeable official in the Department of State Visa Office that USCIS was requesting visa numbers on Sunday July 1st, and Monday morning July 2nd - and that visa numbers were still being issued as late as the morning of July 2nd!

In fact, close to 30,000 visa numbers were requested and issued in July - through the morning of July 2nd. And we believe that many - if not most - of the requests made in the first two days of July were for applicants whose priority dates were not current in June!

So how can USCIS refuse to accept I-485 filings received BEFORE the State Department issued its notice that all visa numbers had been used???? We have not yet confirmed the return of any I-485s filed in July. But we do know that applications were reaching the USCIS before the State Department announcement - and while the USCIS was frantically working to use up the entire year's allocation.

USCIS did not use all visa numbers before July 2nd.

Did USCIS actually use the visa numbers it requested????

Historically, the USCIS doesn't request a visa number from the Department of State until it is ready to grant the adjustment of status application. US Consuls overseas request visa numbers the month before they intend to issue the immigrant visa. This is the reason why consuls return about ten percent of the visa numbers requested - and why USCIS does not generally return any numbers.

In fact, in making allocations of visa numbers, the Department of State factors in an expected return rate for consuls - but not for the USCIS. And the USCIS - before this June - used about 85% of the total immigrant visa numbers available.

However, already this month, the USCIS has been returning visa numbers. This confirms our earlier suspicion that the only way the USCIS could request 68,000 visa numbers in a matter of weeks was to request them in advance of adjudicating cases.

We believe USCIS exhausted the visa numbers by simply requesting them - not by using them. If so, and for reasons we will post shortly, we believe that over 30,000 visa numbers requested by USCIS will go unused - and will be wasted this year!

Posted July 9, 2007

I'll file my I-485 on October 1st ....

From the calls and email we've been getting, it appears that many have read the USCIS announcement as meaning that visa numbers will be current again on October 1st. That is unlikely. With the start of the new fiscal year, the State Department will once again begin allocating visa numbers - and set the priority date cut offs to produce a demand each quarter predicted to equal 25% of the year's supply of visa numbers.

With the USCIS actually processing cases to conclusion, we expect that the priority dates will be available October 1st, but may actually retrogress from the dates listed in the June visa bulletin. We will update this prediction.

But the "end of the story" is simply - don't count on being able to file your I-485 in October.

Posted July 3, 2007

Zoe Lofgren, Chair of the House Immigration Sub Committee, sends letter sent Secretary of State Rice and Homeland Security Secretary Chertoff asking them to reconsider any mid-month updates of the July Visa Bulletin.

Missing visa numbers???

We have heard from multiple sources that adjudicators at USCIS district offices and service centers were frantically requesting visa numbers on pending employment based adjustment of status applications in the last weeks of June. On July 2nd the State Department announced that the USCIS demand had been so great, the entire year's allocation had been used, and visas were therefore "unavailable" for the rest of the year.

How did this happen? There are lawsuits all over the country against the USCIS seeking to order them to complete specific pending adjustment of status applications - and the USCIS almost always defends on the basis that they can't grant an application until "security clearances" have been completed. How did the USCIS process over 30,000 applications in two weeks - and finish security clearances on all of them - cases which were backlogged because security clearances had not been received?

Were USCIS employees in District offices requesting visa numbers in advance of actually approving adjustment of status applications? Were they requesting visa numbers on cases based on the fact that requests for security clearances had been pending for over 180 days - and then planning to wait to approve the case until the security clearance came through? We have heard that this is in fact the case.

By law, a visa number should not be "used" by the USCIS until an applicant's adjustment of status application has been granted.
8 USCA 1255(j)(3). See also 8 USCA 1255(b).

IF the USCIS was requesting visa numbers in advance of approving cases, then visa numbers were not really exhausted on July 2nd. And if that is the case, we think they violated the law in a frantic attempt to use up all the visa numbers by July.

We would like to hear from anyone with specific information on the way that the USCIS processed adjustment of status applications in the last days of June!
Contact

Are you waiting for October ....

"Employment preference numbers will once again be available to these chargeability areas beginning October 1, 2007, under the FY-2008 annual numerical limitation." From the State Department's 'Update' of the July Visa Bulletin.

This does NOT mean that visa numbers will become "Current" again in October. It only means that they will be "available." And we believe that the cut off dates will retrogress substantially from what they were in June.

Posted July 2, 2007

July Visa Bulletin
NOT CURRENT - GONE

In the middle of the morning of July 2nd - the first working day of the new month, the Department of State announced an "update" to the July visa bulletin - stating that effective immediately, no employment based visa numbers would be issued.

USCIS followed with an announcement that any I-485 application received on or after July 2, 2007 would be rejected.

And how did this happen??? Why did we go from "Current" to "Unavailable" on the first day of the month? We believe that the USCIS Service Centers were working overtime in the last weeks of June processing adjustment of status cases that should have been processed months or years before - for the sole purpose of using up the visa numbers before July 2nd.

We question whether their actions in scrambling to use all the visa numbers was legal - and we question whether rejecting applications filed on July 2nd is legal. In the first instance, the law is clear that "immigrant visas are to be made available in the order in which a petition [i.e. I-140] ... is filed with the Attorney General. 8 U.S.C. 1153(e). Did USCIS request visas numbers from the State Department "in the order in which a petition was filed?" We doubt it.

As to rejecting applications filed on July 2nd, the USCIS has always accepted applications filed in the month in which the visa bulletin shows availability - even if current demand exceeds supply.

We are considering all options at this time.

Posted June 14, 2007

July Visa Bulletin
CURRENT

All employment based categories - other than "other worker" will be current in July!

They will not stay current very long. We may not see this hold through the entire month of July! We know that numbers will retrogress again in October with the start of the new fiscal year - if not sooner.

Do not delay in documenting and filing I-485 applications. The "door of opportunity" could close in early July.

Posted May 15, 2007

June Visa Bulletin
Jumping ahead....
- why, and what is next

The visa bulletin for June, 2007 shows substantial forward movement in critical employment categories. The employment 3d preference (EB3) jumps almost two years for the entire world - almost one year for China. The employment second preference advances, and the "other worker" category becomes available again, albeit with a priority date of 10/1/2001.

Unfortunately, the jump in priority dates is not the result of a decrease in demand for visas. It rather results from the USCIS not processing pending cases to conclusion, and therefore not requesting visa numbers from the State Department. The State Department tries to allocate all available visa numbers within a fiscal year - and if USCIS doesn't request numbers, they don't get used.

The result is that the State Department has advanced the cutoff dates hoping that the USCIS and overseas consuls will request enough numbers to utilize the full allotment for the year.

We know that there are enough qualified applicants with pending I-485 applications to utilize the entire year's allotment. And that overhand of qualified applicants waiting to be completed keeps growing.

Our prediction is that the priority dates may continue to advance in the coming months - but that at some point, the USCIS will begin clearing its backlog. When that happens, expect retrogression in visa availability in all categories.

Applicants who are qualified to file for adjustment of status based on current visa availability should do so as soon as possible. However, they should expect that in the six months or so it will take USCIS to process their cases, retrogression may occur, and they may wind up waiting a very long time until their filed applications can be completed.

This is what the State Department says in the June, 2007 Visa Bulletin:

The current level of demand in many of the Employment-based categories has been much lower than anticipated. As a result, the June cut-off dates have been advanced significantly in an effort to maximize number use under the annual numerical limits. At this time it appears likely that there will be additional advances during the coming months.

All readers should be aware that such cut-off date movements should allow for action to be finalized on a significant number of Citizenship and Immigration Services adjustment of status cases. Once that level of demand begins to exceed the supply of available numbers it will be necessary to make “adjustments” to the cut-off dates. At this time is in not possible to estimate when this is likely to occur, but it is expected.

Posted July 20, 2006

August 2006 Visa Bulletin - RETROGRESSION
- what it means

The visa bulletin for August, 2006 shows that India employment based visas in the 2nd preference category have become "unavailable." The third preference is available - but still oversubscribed. Visas are only available to those with priority dates earlier than April 1, 2001.

September will be the last month of the fiscal year - and the State Department has predicted that there may be no forward movement in visa availability - and perhaps further retrogressions or "unavailability."

What does this mean?

When an adjustment of status application is completed by the CIS, or an immigrant visa is issued by a U.S. consulate, a visa number must be available in the appropriate preference classification. U.S. consuls request visa numbers from the State Department before scheduling an immigrant visa appointment. CIS requests a visa number when an adjustment of status application is adjudicated (either after an interview, if an interview is scheduled, or after file review if the case is completed at a Service Center.)

U.S. consuls will not schedule immigrant appointments, and CIS will not complete adjustment of status applications, for applicants in the third employment based preference category in August, 2006 unless their priority dates are earlier than October 1, 2001 (April 1, 2001 for India and Mexico); nor for applicants in the second preference category from China unless their priority dates are earlier than March 1, 2005; nor for any applicants from India in the second preference category.

When an adjustment of status application is filed, a visa number must be "immediately available." The CIS will not accept adjustment of status applications for applicants whose priority dates have not been reached.

What about changing jobs?

An applicant who has filed for adjustment of status (I-485), based on an approved labor certification, can change employers and/or jobs, provided that they are still working in the same occupational classification when their application is adjudicated, and provided that the adjustment of status application has been pending at least 180 days and the preference petition has been approved.

But "portability" for adjustment applicants only applies if the I-485 has actually been filed. With retrogression in the employment based preference categories, a labor certification application may be approved years before an adjustment of status application can be filed.

Under current law - when an adjustment of status application is filed based upon a labor certification, the employee must intend to take up the certified employment, and the employer must intend to employ the applicant.

Also, under current law, an employer may "substitute" one worker for another on an approved labor certification.

Therefore, changing jobs after a labor certification is approved and before filing an application for adjustment of status may negate the labor certification.

Does that mean I start over again if I change jobs?

With the new PERM regulations, labor certifications can be approved in a matter of several months. Regulations allow an alien to use the earliest employment based priority date to which they are entitled. If you have an approved preference petition, and then change jobs and obtain a new labor certification, you will be able to use the earlier priority date.

There is at least one caveat. The CIS has indicated that if an employer has substituted another worker on the old labor certification, you won't be able to use the old priority date.

If the employer does not withdraw the preference petition approved for you, and if the employer does not substitute another worker on the labor certification, then you will be able to use the oldest priority date.

What is a priority date?

A labor certification is required for the third employment based preference category (and for most second preference applicants). The priority date for a third preference applicant is generally the date the labor certification application was filed. For applications not based on a labor certification, it will be the date the preference petition (I-140) was filed. However, until the preference petition is approved, there is no priority date. For employment categories, if you have more than one I-140 approved, you can use the earliest priority date.

What is the third preference?

The third employment based preference category is for "Skilled Workers, Professionals, and Other Workers." (A "professional" has a bachelor's degree or foreign degree equivalent. A "skilled worker" is one who has a position requiring at least two years of specialized training or experience." ) A labor certification is required in this category.

What is the second preference?

The second employment based preference category is for "Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability." A labor certification is required unless it is waived in the national interest.

How do I wind up in one or the other preference category?

A petition for preference classification must be filed documenting that you are eligible for the specific preference classification you are requesting. If you are eligible for more than one preference category, multiple petitions could be filed requesting classification in each such category.

I have a masters degree. Does that mean I can be in the second preference?

Not necessarily. In order to be eligible for second preference classification based on a masters degree, your petition must be based on a labor certification which requires a masters degree. The labor certification application must contain no more than the actual minimum requirements for the position for which certification is sought. If your job classification does not require a masters degree, then even though you have such a degree, you will not be able to obtain a second preference classification based on that job.

Why did this happen?

There are only 143,949 employment based visas available this year for the entire world. That number includes family members. There is a limit of 7% of that total which can be used by any one country. Thus India is limited to l0,076 visas for employment based applicants and their families for all of fiscal year 2006.

The State Department tries to control the allocation of visas on a quarterly basis, and "overloads" the first two quarters of the year to assure that no visa numbers will be wasted by not being used by the end of the fiscal year. The priority dates are set at a date estimated to produce, for instance, 2,500 visas for Indian employment based applicants every three months.

Actual demand is not predictable with certainty - partly because the Citizenship and Immigration Service reports their visa usage after the fact, while the U.S. consuls report application in advance.

What's next?

With the start of the new fiscal year in October, visas will once again become available for all preference categories, and all countries. However, backlogs will continue.

Forward movement may be very slow next year, and there may be additional retrogression. The Department of Labor has promised to clear the backlog in labor certifications by October 2007. This means that tens of thousands of very old labor certifications, with very old priority dates, will be approved in the coming months. They will all be ahead in line of newer applications - and ahead of any PERM application which has a new priority date.

Demand will greatly exceed supply of visas for the foreseeable future on the employment side - unless their are changes in the law. The good news is that most of the immigration bill recently introduced will dramatically increase the numbers of visas available on the employment side.

Posted 6/2/2006

CIS announced that the H-1b cap for the fiscal year beginning 10/1/2006 has been reached.

Their press release states that as of Friday, May 26, 2006, more than enough applications were filed to satisfy the statutory cap. The announcement came as a surprise in that they had announced that as of May 25th only 49,034 cap subject H-1bs had been filed. Filings had been running at the rate of 1,000 to 2,000 per day in the previous week. The CIS miscounted, or
they received 13,000+ applications on a single day, or their previous counts were misleading.

What this means.

The CIS will reject H-1b petitions subject to the cap received after May 26, 2006. Applications filed on that date will be subject to a selection lottery. Checks for filing fees will be returned with rejected applications. Refunds will be made by CIS for filing fees accepted in error. Unless Congress provides relief, new applications won't be accepted again until April 1, 2007 for H-1b status to commence on October 1, 2007.

Not everyone is affected by this cutoff:

The cap does not apply to:

- an alien with a US masters degree (20,000 are exempt from the cap - less than 6,000 exempt petitions have been filed)

- an alien who is now working as an H-1b and is seeking to extend status or transfer employers

- an alien who has had an H-1b at anytime within the last six years, and who has not left the US

- aliens who are citizens of Chile or Singapore have "reserved" H-1bs beyond what those countries have required in the past.

- aliens who are to work at a U.S. institute of higher education or an affiliated non profit entity

- aliens who are to work at a nonprofit or governmental research organization

Petitions for other nonimmigrant categories are still available to those who qualify. These include the new E-3 visa - virtually the same qualifications as an H-1b, but limited to citizens of Australia;
the TN category for Canadian and Mexican citizens; E visas for citizens of countries with treaties of trade or investment with the U.S.; and L visas for individuals being transferred to the US who have been working abroad for an affiliate, subsidiary, or office of the US employer.

It may not be over yet.......

There is substantial relief for the H-1b cap problem in the immigration bills now being considered by Congress. The bill the Senate recently passed raises the cap to 115,000, and exempts many more applicants from being counted against the cap.

That the cap was reached in less than two months for a year which won't begin for another four months shows the incredible demand that the US economy has for educated and skilled workers.
Rightfully, there will be tremendous pressure on Congress to recognize this as a problem and to do something about it.

You can help! At least contact your elected representative, and let them know how important reform is to you and your company.
---------------------------

October, 2005 Visa Bulletin - BACKLOGS
- what it means

The first visa bulletin for the new fiscal year (2006) has been published, and contains bad news for employment based visa applicants. The third preference is available - but oversubscribed. Visas are only available to those with priority dates earlier than March 1, 2001. Per country limits and demand have resulted in India, China and Mexico being even further backlogged.

The second employment based preference category is current for all countries except China and India where it is backlogged to May 1, 2000 and November 1, 1999 respectively. The first preference is also backlogged for those countries to January 1, 2000 (China) and August 1, 2002 (India).

The State Department has predicted that forward movement will be slow for the rest of the fiscal year.

What does this mean?

U.S. consuls will not schedule immigrant appointments, and CIS will not complete adjustment of status applications, for applicants in the third employment based preference category in October, 2005 unless their priority dates are earlier than March 1, 2001 (May 1, 2000 for India, January 1, 1998 for India, and January 1, 2000 for Mexico); nor for applicants in the second preference category from India or China unless their priority dates are earlier than May 1, 2000 (China) or November 1, 1999.

What about changing jobs?

Also, under current law, an employer may "substitute" one worker for another on an approved labor certification.

Therefore, changing jobs after a labor certification is approved and before filing an application for adjustment of status may negate the labor certification.

Does that mean I start over again if I change jobs?

There is at least one caveat. The CIS has indicated that if an employer has substituted another worker on the old labor certification, you won't be able to use the old priority date.

What is a priority date?

What is the third preference?

What is the second preference?

How do I wind up in one or the other preference category?

I have a masters degree. Does that mean I can be in the second preference?

Can I file an I-485 if my priority date is after the cutoff date?

No. For an adjustment of status application (I-485) to be properly filed, a visa number must be "immediately available." In October, 2005 for instance, a third preference applicant from India, will not be permitted to file an I-485 unless their priority date is earlier than May 1, 2000.

What happens when my labor certification is approved and my priority date has not been reached?

A preference petition can be filed for you when your labor certification is approved, but the filing of your I-485 (or your application for an immigrant visa) will have to wait for your priority date to be reached.

What if my I-485 has already been filed, and I have a non current priority date?

If the I-485 is properly filed (visa number available at the time of filing), it can remain pending until the priority date is reached. The adjustment of status won't be completed until then, but you can remain in the U.S. while it is pending. However, you must continuously maintain your work and travel authorization if you intend to keep working, and want to be able to leave the U.S. and return. Be sure and seek advice if you need to change employment before the I-485 is approved.

Why did this happen?

There are a limited number of visas available in each preference category, and within each category, no single country can utilize more than 7% of the available visas. For various reasons, the CIS has built up a tremendous backlog of unadjudicated adjustment of status cases. Backlog reduction efforts have resulted in an increased demand for visa numbers. This has affected persons from those countries with the highest demand - India, China, Mexico & the Philippines - and all applicants in the third employment based preference category. The State Department is required to allocate visas in priority date order where demand exceeds supply.

What happens to the cutoff date in the future?

Every month the State Department reviews the demand for visa numbers, and can move the cutoff dated to control allocation within the statutory limits. The cutoff date does NOT necessarily move forward a month every month. If demand is higher than expected, the date can move backwards. If all visa numbers in a category (or for a country) are used, the category becomes "unavailable." As the CIS is continuing to clear its backlog, we expect demand to be high, and forward movement to be very slow. The Department of Labor's backlog reduction efforts are also contributing to the increase in demand as old labor certifications are adjudicated and preference petitions are filed.

Can I be allocated to a different country?

In general, you are "charged" to the country of your birth. A change of citizenship does not change the country of chargeability. For instance, a person born in China who becomes a Canadian citizen will still be charged to China. There are two exceptions to this rule. A person can be charged to their spouse's country of chargeability if their spouse is getting an immigrant status at the same time they are. A person can also be charged to their parents country of chargeability if their parents were only temporarily residing in the country of their birth at the time they were born.

How do I know what the cutoff date is?

The State Department Visa Bulletin is published in the middle of each month and announces the cutoff dates for the following month. Sometimes predictions are published about the future progress of cutoff dates.

This information has been prepared for the general information of clients of the Law Offices of Jay I. Solomon. You should consult an attorney for specific advice before relying on general information. Copyright 2004, 2005 Jay I. Solomon