PrinceofJungle
New Member
Immigrant Visa Numbers Expected to Retrogress in January 2005
Content:
Adjustment of Status Filing Prior to Retrogression Advisable
The U.S. Department of State (DOS) Visa Bulletin for October 2004 has indicated that retrogression of available immigrant visas in the third employment-based category may occur as early as January 2005. This means that certain individuals with approved immigrant visa petitions in this category who have not yet filed applications for adjustment of status to permanent residence may be precluded from doing so for quite some time. It also means that some foreign nationals will not be able to file their applications for adjustment of status to permanent residence concurrently with their employer's Form I-140 petition for immigrant worker. People who already have pending adjustment applications may also experience lengthy delays before their applications are approved. Finally, some children who turn 21 before their adjustment applications are approved may lose their eligibility for permanent residence. Wherever possible, if concurrent filing has not been utilized, adjustment of status applications should be filed as expeditiously as possible.
Further explanation of the significance of this development, as well as its impact on specific types of cases, is provided below.
Background
By law, there is a limited number of immigrant "visa numbers" available each year for people seeking U.S. permanent residence based on petitions filed for them by family members or U.S. employers. These numbers are allocated both to actual immigrant visas issued at U.S. embassies and consulates abroad to people seeking to immigrate to the United States, and to applications for adjustment of status to permanent residence filed by nonimmigrants already present in the United States. No single country's citizens can be awarded more than a statutorily-determined number of immigrant visa numbers each year. Once all immigrant visas for a certain year have been allocated, the visa category or foreign country in which demand was excessive is considered to be oversubscribed.
At that point, cut-off dates for the oversubscribed categories and/or countries are published in the DOS's monthly Visa Bulletin (available under the "Resources" tab on the Fragomen website at http://www.fragomen.com). The cut-off date in any particular category is the priority date of the first applicant whose application could not be reached within the numerical limits. Priority dates are established based on the date that the underlying labor certification application or immigrant visa petition was filed on behalf of the foreign national seeking permanent residence. For example, if Company A filed an I-140 Petition for Immigrant Worker on behalf of Employee B in the third employment-based permanent residence category (known as a "preference") based on a labor certification that had been filed on June 15, 2003, then the employee's priority date is June 15, 2003. Employee B can only apply for an immigrant visa or adjustment of status if the priority date listed in the DOS's Visa Bulletin for the third employment-based preference is June 15, 2003 or earlier.
For the past several years, the U.S. Citizenship and Immigration Services (USCIS) and the legacy Immigration and Naturalization Service (INS) have experienced significant processing backlogs. As a result, not all of the available immigrant visa numbers have been used each year. Accordingly, the DOS's Visa Bulletin has listed all employment-based preferences as "current" since July 2001. This has meant that since July 2001, all foreign nationals with approved employment-based I-140 petitions have been able to proceed immediately to applications for immigrant visas or adjustment of status. Since the July 2002 rule permitting concurrent filing of I-140 petitions and adjustment of status applications came into effect, nonimmigrants in the United States being sponsored by their employers for permanent residence have also been able to take advantage of the concurrent filing rule without any delay.
Expected Retrogression
Recently, the USCIS has made strides in meeting its goal to reduce processing times. One unfortunate result of this otherwise laudable achievement is that the annual quota of some employment-based immigrant visas is expected to be met this year. (Note that the backlogs never did disappear in the family-based categories, and there are lengthy waits for all family-based petitions, with the exception of petitions filed by U.S. citizens for spouses, parents or minor children, which are exempt from any numerical quotas.) Once the annual quota is met, it is necessary for the DOS to re-establish cut-off dates in order to regulate the flow of immigrant visa and adjustment of status applications and ensure that people with approved immigrant visa petitions are able to apply for permanent residence in the order in which their petitions were filed. This re-establishment of cut-off dates is referred to as a "retrogression" in priority dates.
The latest word is that this retrogression will probably happen as early as January 2005. Initially, priority date waits are expected to be implemented only in the third-employment-based preference for skilled workers and professionals. In addition, it is possible that cut-off dates will appear only for the traditionally oversubscribed countries of China, India, Mexico and the Philippines. However, it is not yet clear that the cut-off dates will be limited to this category and to these countries. Other categories of employment-based permanent residence cases, and other countries (or all countries), could also be affected.
The other key issue is what the new cut-off date will be. Although it is not certain, it is possible that the cut-off date for the third employment-based preference for certain countries could retrogress to as early as sometime in 2002. If, for example, the cut-off date as of January 1, 2005 is established at June 1, 2002, this means that any foreign national with a priority date of June 2, 2002 or later will not be eligible to apply for an immigrant visa or adjustment of status until his or her priority date becomes current. Our Employee B, whose labor certification was filed on June 15, 2003, would therefore no longer be eligible to apply for permanent residence until her priority date becomes current on the DOS's Visa Bulletin.
Impact on Pending Adjustment of Status Applications
What if Employee B already has an adjustment of status application pending based upon her approved I-140? The I-140 priority date was current when she filed her adjustment application, but that is no longer the case. Her nonimmigrant visa status has already expired, and she has been working pursuant to an Employment Authorization Document (EAD) issued by the U.S. Citizenship and Immigration Services (USCIS). Moreover, she travels frequently on business, and has been traveling on an Advance Parole travel document. Will her ability to continue to work and travel now be at risk?
No. Based on Legacy INS policy and practice, her ability to work and travel will not be at risk, and she will remain eligible for employment and travel authorization. That is, a person who had already filed an adjustment application, and who was genuinely eligible to do so at the time the application was filed, will be able to continue to rely on any EAD or Advance Parole issued by the USCIS – and to apply for extensions – so long as her adjustment application remains pending. In addition, an adjustment applicant whose nonimmigrant status expires at some point after visa numbers retrogress, and who then needs to apply for an EAD and Advance Parole for the first time, will still be permitted to do so. However, the amount of time it will take for the adjustment application to be approved will clearly be much longer than anticipated when the application was initially filed. Fortunately, the USCIS is slated to implement a new regulation that will authorize the Service Centers to issue EADs valid for longer than one year. Although it is not clear when the regulation will actually be implemented, or for how long EADs will be valid, EADs should still be available to pending adjustment applicants affected by the immigrant visa retrogression. Unfortunately, there is no similar rule being proposed to extend the validity of Advance Parole documents, so they will still need to be renewed on an annual basis.
Impact on Concurrent Filing – Past and Future Filings
Currently, all beneficiaries of employment-based I-140 petitions can take advantage of the concurrent filing rule, which permits foreign nationals to file their adjustment of status applications concurrently with their employer's I-140 petition. Once visa numbers retrogress in any category, however, individuals in the affected category will not be able to file their adjustment applications concurrently with the I-140 petition. They will have to wait until their priority date becomes current before they can file their adjustment applications. In the event that their priority date becomes current before the I-140 petition is approved, they can proceed with their adjustment application right away. A more likely scenario, however, is that the I-140 petition will be approved, but the beneficiary will then need to wait several months for her priority date to become current before she can file an adjustment application.
-----------------------------------------------------------
Link: http://pubweb.fdbl.com/news1.nsf/0/de4a074ccf67ac9885256f31005d4a19?OpenDocument
Also read Fragomen.com
One of Sernior member 'RealCanadian' also posted and helped to understand.
http://boards.immigration.com/showthread.php?t=149322
also read
http://www.usvisahelp.com/nw_vol3_iss10.html
Good Luck
Content:
Adjustment of Status Filing Prior to Retrogression Advisable
The U.S. Department of State (DOS) Visa Bulletin for October 2004 has indicated that retrogression of available immigrant visas in the third employment-based category may occur as early as January 2005. This means that certain individuals with approved immigrant visa petitions in this category who have not yet filed applications for adjustment of status to permanent residence may be precluded from doing so for quite some time. It also means that some foreign nationals will not be able to file their applications for adjustment of status to permanent residence concurrently with their employer's Form I-140 petition for immigrant worker. People who already have pending adjustment applications may also experience lengthy delays before their applications are approved. Finally, some children who turn 21 before their adjustment applications are approved may lose their eligibility for permanent residence. Wherever possible, if concurrent filing has not been utilized, adjustment of status applications should be filed as expeditiously as possible.
Further explanation of the significance of this development, as well as its impact on specific types of cases, is provided below.
Background
By law, there is a limited number of immigrant "visa numbers" available each year for people seeking U.S. permanent residence based on petitions filed for them by family members or U.S. employers. These numbers are allocated both to actual immigrant visas issued at U.S. embassies and consulates abroad to people seeking to immigrate to the United States, and to applications for adjustment of status to permanent residence filed by nonimmigrants already present in the United States. No single country's citizens can be awarded more than a statutorily-determined number of immigrant visa numbers each year. Once all immigrant visas for a certain year have been allocated, the visa category or foreign country in which demand was excessive is considered to be oversubscribed.
At that point, cut-off dates for the oversubscribed categories and/or countries are published in the DOS's monthly Visa Bulletin (available under the "Resources" tab on the Fragomen website at http://www.fragomen.com). The cut-off date in any particular category is the priority date of the first applicant whose application could not be reached within the numerical limits. Priority dates are established based on the date that the underlying labor certification application or immigrant visa petition was filed on behalf of the foreign national seeking permanent residence. For example, if Company A filed an I-140 Petition for Immigrant Worker on behalf of Employee B in the third employment-based permanent residence category (known as a "preference") based on a labor certification that had been filed on June 15, 2003, then the employee's priority date is June 15, 2003. Employee B can only apply for an immigrant visa or adjustment of status if the priority date listed in the DOS's Visa Bulletin for the third employment-based preference is June 15, 2003 or earlier.
For the past several years, the U.S. Citizenship and Immigration Services (USCIS) and the legacy Immigration and Naturalization Service (INS) have experienced significant processing backlogs. As a result, not all of the available immigrant visa numbers have been used each year. Accordingly, the DOS's Visa Bulletin has listed all employment-based preferences as "current" since July 2001. This has meant that since July 2001, all foreign nationals with approved employment-based I-140 petitions have been able to proceed immediately to applications for immigrant visas or adjustment of status. Since the July 2002 rule permitting concurrent filing of I-140 petitions and adjustment of status applications came into effect, nonimmigrants in the United States being sponsored by their employers for permanent residence have also been able to take advantage of the concurrent filing rule without any delay.
Expected Retrogression
Recently, the USCIS has made strides in meeting its goal to reduce processing times. One unfortunate result of this otherwise laudable achievement is that the annual quota of some employment-based immigrant visas is expected to be met this year. (Note that the backlogs never did disappear in the family-based categories, and there are lengthy waits for all family-based petitions, with the exception of petitions filed by U.S. citizens for spouses, parents or minor children, which are exempt from any numerical quotas.) Once the annual quota is met, it is necessary for the DOS to re-establish cut-off dates in order to regulate the flow of immigrant visa and adjustment of status applications and ensure that people with approved immigrant visa petitions are able to apply for permanent residence in the order in which their petitions were filed. This re-establishment of cut-off dates is referred to as a "retrogression" in priority dates.
The latest word is that this retrogression will probably happen as early as January 2005. Initially, priority date waits are expected to be implemented only in the third-employment-based preference for skilled workers and professionals. In addition, it is possible that cut-off dates will appear only for the traditionally oversubscribed countries of China, India, Mexico and the Philippines. However, it is not yet clear that the cut-off dates will be limited to this category and to these countries. Other categories of employment-based permanent residence cases, and other countries (or all countries), could also be affected.
The other key issue is what the new cut-off date will be. Although it is not certain, it is possible that the cut-off date for the third employment-based preference for certain countries could retrogress to as early as sometime in 2002. If, for example, the cut-off date as of January 1, 2005 is established at June 1, 2002, this means that any foreign national with a priority date of June 2, 2002 or later will not be eligible to apply for an immigrant visa or adjustment of status until his or her priority date becomes current. Our Employee B, whose labor certification was filed on June 15, 2003, would therefore no longer be eligible to apply for permanent residence until her priority date becomes current on the DOS's Visa Bulletin.
Impact on Pending Adjustment of Status Applications
What if Employee B already has an adjustment of status application pending based upon her approved I-140? The I-140 priority date was current when she filed her adjustment application, but that is no longer the case. Her nonimmigrant visa status has already expired, and she has been working pursuant to an Employment Authorization Document (EAD) issued by the U.S. Citizenship and Immigration Services (USCIS). Moreover, she travels frequently on business, and has been traveling on an Advance Parole travel document. Will her ability to continue to work and travel now be at risk?
No. Based on Legacy INS policy and practice, her ability to work and travel will not be at risk, and she will remain eligible for employment and travel authorization. That is, a person who had already filed an adjustment application, and who was genuinely eligible to do so at the time the application was filed, will be able to continue to rely on any EAD or Advance Parole issued by the USCIS – and to apply for extensions – so long as her adjustment application remains pending. In addition, an adjustment applicant whose nonimmigrant status expires at some point after visa numbers retrogress, and who then needs to apply for an EAD and Advance Parole for the first time, will still be permitted to do so. However, the amount of time it will take for the adjustment application to be approved will clearly be much longer than anticipated when the application was initially filed. Fortunately, the USCIS is slated to implement a new regulation that will authorize the Service Centers to issue EADs valid for longer than one year. Although it is not clear when the regulation will actually be implemented, or for how long EADs will be valid, EADs should still be available to pending adjustment applicants affected by the immigrant visa retrogression. Unfortunately, there is no similar rule being proposed to extend the validity of Advance Parole documents, so they will still need to be renewed on an annual basis.
Impact on Concurrent Filing – Past and Future Filings
Currently, all beneficiaries of employment-based I-140 petitions can take advantage of the concurrent filing rule, which permits foreign nationals to file their adjustment of status applications concurrently with their employer's I-140 petition. Once visa numbers retrogress in any category, however, individuals in the affected category will not be able to file their adjustment applications concurrently with the I-140 petition. They will have to wait until their priority date becomes current before they can file their adjustment applications. In the event that their priority date becomes current before the I-140 petition is approved, they can proceed with their adjustment application right away. A more likely scenario, however, is that the I-140 petition will be approved, but the beneficiary will then need to wait several months for her priority date to become current before she can file an adjustment application.
-----------------------------------------------------------
Link: http://pubweb.fdbl.com/news1.nsf/0/de4a074ccf67ac9885256f31005d4a19?OpenDocument
Also read Fragomen.com
One of Sernior member 'RealCanadian' also posted and helped to understand.
http://boards.immigration.com/showthread.php?t=149322
also read
http://www.usvisahelp.com/nw_vol3_iss10.html
Good Luck
Last edited by a moderator: