FYI: Priority dates in the EB categories could retrogress in FY-2005

K

kvpt_mm

Registered Users (C)
Courtesy : http://www.murthy.com

Backlog Reduction may Impact Employment Priority Dates

The U.S. Department of State (DOS) Visa Bulletin for August 2004 mentioned that the priority dates in the employment-based categories could retrogress at some point in the future. One of the reasons for this is that the USCIS has embarked on a series of programs to reduce their case backlogs.


Background

One of the side effects of the faster processing efforts is that faster
processing of green card cases creates an increased demand for immigrant visa numbers. Since there are a limited number of immigrant visas issued in each category each year, the increased demand causes backlogs in various categories. This has already resulted in the regression, or going backwards, of certain family-based priority dates. While the priority dates in employment-based cases remain current for all categories, increased demand could change this situation in the future. For more information on priority dates and their importance in the immigration process, see our MurthyDotCom article, "Priority Dates: How do they Work?"
<http://www.murthy.com/news/UDpdhdtw.html>. Basically, in order to complete the green card process either through consular processing or adjustment of status, there must be an immigrant visa number available. These visa numbers are allocated by DOS pursuant to annual legal limits. The tracking as to which cases have a visa number available to them, based upon the date the case was filed, is set out in a monthly DOS publication known as the Visa Bulletin <http://www.murthy.com/visadate.html>, which we make available on MurthyDotCom.

Family-Based Cases

The cut-off dates given in the Visa Bulletin are based on estimates of the
demand for visas. Since this demand is directly tied to how fast the DOL and USCIS process their respective portions of the green card cases, when they are faster, the demand increases. Certain family-based categories have already experienced retrogression in the cut-off date. This increased demand is expected to cause the forward movement of the family-based cut-off dates in other categories to either slow or stop.

Employment-Based Cases

Employment-based (EB) cases may also feel the impact of the increased demand in the future. The Visa Bulletin for August 2004 indicates that it may become necessary to establish cut-off dates in employment-based categories at some point in the future based on demand for visa numbers. The DOS, however, states that it is not known if or when this will happen in Fiscal Year (FY) 2005, which begins

on October 1, 2004. If cut-off dates are established for affected cases, it
would have an impact on both the ability to file the final portion of the green
card case, as well as the ability to complete the case. That is, in the example of an adjustment of status, it is not possible to file an adjustment of status case unless the priority date is current. Once the adjustment of status is filed, if the cut-off dates retrogress, it is not possible to obtain permanent residence until the visa number becomes available. However, if the I-485 is filed when the numbers retrogress, the applicant has historically been able to remain in the U.S. and obtain an Employment Authorization Document (EAD) and Advance Parole (AP) extensions, if otherwise qualified. Also, it would likely help to have a case filed under the EB Second Preference (EB2) category, since the backlogs could increase in the EB Third Preference (EB3) category.

Conclusion

At this point, the issue as it relates to employment priority dates is
speculative and based on a future estimate if cases are processed faster. The priority dates remain current in all categories. Moreover, even if cut-off dates are established at some point during FY2005 or thereafter, it may not be for all categories. This information therefore is not cause for any urgent concern. It is an issue of which to be aware for the future and to consider when deciding whether to proceed with filing a green card case now or wait for some later event. It may be better to file sooner to establish the earliest possible priority date in case the issue of obtaining an earlier priority date becomes important once again.
 
Once the adjustment of status is filed, if the cut-off dates retrogress, it is not possible to obtain permanent residence until the visa number becomes available.
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Now that USCIS is not following the FIFO policy, this comes as bad news to filer like me (July 2002). USCIS is adjusting cases filed in 2003 and have left many 2001 and 2002 hang there.
 
Its my concern too.

FY2005 is just around the corner and if DOS retrogress the 485 priority dates by end of this year, this will sure affect lot of cases in EB3 category and some in EB2. I am very much concerned with this news this morning. I thought 485 dates for EB based petitions will never retrogress for 2-3 years.

Looks like PD theory will again take into affect very soon.

Any more thoughts folks ?
 
You guys are funny. Murthy does some idle musing on a slow Friday when she's got nothing better to do and you all start running around like hysterical women.

sgi said:
Now that USCIS is not following the FIFO policy, this comes as bad news to filer like me (July 2002). USCIS is adjusting cases filed in 2003 and have left many 2001 and 2002 hang there.
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First off, retrogression of priority dates would be a god-send to a 2001 or 2002 filer like yourself, especially if you filed before concurrent filing was started. Your priority date is farther back before any likely cutoff, so USCIS would concentrate more on cases like your own than newer ones.

Look, even when we had the priority date limitations, the only countries that were ever affected were India and China. Since then, AC21 has allowed USCIS to eliminate the per-country numerical limitations, which were what was holding back India and China, not the total number of immigrant visa numbers in the EB2 and EB3 categories.

Does anyone think that USCIS would go through all the trouble of putting together concurrent filing if the priority dates were going to retrogress? Concurrent filing is only done in cases when an IV number is always available, which are Immediate Relatives (by law) and Employment-Based (by lack of demand). That isn't going to change.

If there was a danger of running out of EB IV numbers, all USCIS is likely to do is slow down I-485 ajudications for a month or two right at the end of the fiscal year, which is when the H-1B filings are heavy, anyways.
 
This will put them on right track.

kvpt_mm said:
Courtesy : http://www.murthy.com

Backlog Reduction may Impact Employment Priority Dates

The U.S. Department of State (DOS) Visa Bulletin for August 2004 mentioned that the priority dates in the employment-based categories could retrogress at some point in the future.
.
Click to expand...
 
Well TheRealCanadian

I see the positive end of your story for people benefit like us who filed in 2002 & early 2003. But we never knew how far the Visa numbers for EB category will retrogress from current date. If they go way back, then i am pretty much sure we have to wait a long time to get the approval compared to what the projected time frame ( 365 - 540 days )

As you said, if 485 is going to be based on priority dates , then the whole idea of Concurrent filing concept will not make any sense .. but the message she posted today will sure raise some issues for concurrent processing in near future .

US Immigration will only be issued if visa numbers available under specific category. If DOS retrogress the dates, there is nothing that USCIS can do about it. At present the dates for EB are current, so they introduced the concept of concurrent filing...if the dates go back.. USCIS may ask you to file your I140 first and only file your I485 when the dates become current according to your LC along with your approved/pending I140 notice issued.

That sure does open another chapter for US immigraion policy
 
kvpt_mm said:
Well TheRealCanadian

I see the positive end of your story for people benefit like us who filed in 2002 & early 2003. But we never knew how far the Visa numbers for EB category will retrogress from current date. If they go way back, then i am pretty much sure we have to wait a long time to get the approval compared to what the projected time frame ( 365 - 540 days )

As you said, if 485 is going to be based on priority dates , then the whole idea of Concurrent filing concept will not make any sense .. but the message she posted today will sure raise some issues for concurrent processing in near future .

US Immigration will only be issued if visa numbers available under specific category. If DOS retrogress the dates, there is nothing that USCIS can do about it. At present the dates for EB are current, so they introduced the concept of concurrent filing...if the dates go back.. USCIS may ask you to file your I140 first and only file your I485 when the dates become current according to your LC along with your approved/pending I140 notice issued.

That sure does open another chapter for US immigraion policy
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If they retrogress, one could not file I-140 or I-140/I-485 (concurrent). So it will affect future applicants. In the meantime they would theoretically in good faith try to meet the immigration quotas as provided by the INA: 170,000 EB visas per year, which by the way they are not meeting now. You may see something coming with the introduction of PERM (LC) and DOL Backlog reduction, coming up in a couple of months.
 
kvpt_mm said:
USCIS may ask you to file your I140 first and only file your I485 when the dates become current according to your LC along with your approved/pending I140 notice issued.
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Well I heard this rumor last week that they are going to suspend cuncorrent filling. But I heard a diifrent reson that lot of people misusing it by obtaing EADs.
 
kvpt_mm said:
But we never knew how far the Visa numbers for EB category will retrogress from current date. If they go way back, then i am pretty much sure we have to wait a long time to get the approval
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DOS has a good handle on the priority dates because they are constantly adjusting them based on the family side of things. My guess (and this is only a guess - I have no expertise or hard knowledge on this matter) is that they know how many folks are "in the queue" with a priority date in each particular month, and adjust the priority dates based on that.

I would hazard a guess that there are very few folks around with PDs before May 2001 left, so if your PD is before the 245i cutoff you will be fine. I think a lot of the 245i LCs have either filed their I-140/485 or aren't going to yet. Let me take a rough guess and say that unless your Priority Date is in late 2002 and you're Indian or Chinese I wouldn't worry.

If DOS retrogress the dates, there is nothing that USCIS can do about it.
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Absolutely, but don't believe for a minute that the two agencies don't stay in touch about visa number usage and its effect on priority dates. The vast majority of family-based immigrants (excluding immediate relatives) get their GC via consular processing, ie. a DOS process. The majority of EB immigrants go via USCIS, because of the AC21 advantages of adjustment.

If DOS tells USCIS that their visa number usage is high enough to cause a retrogression of priority dates, USCIS can either make their lives more complicated by screwing up concurrent filing - or they can simply cut back the focus on ajudicating I-485s and process something else for a few months.

It's not like that hasn't ever happened before. :)

But remember folks, AC21 eliminated the per-country limit on EB immigrant visa numbers; the total limit of 177,000 or so has never been reached. What was messing up the Indians and Chinese was the per-country limit, not the total number.
 
TheRealCanadian said:
You guys are funny. Murthy does some idle musing on a slow Friday when she's got nothing better to do and you all start running around like hysterical women.



First off, retrogression of priority dates would be a god-send to a 2001 or 2002 filer like yourself, especially if you filed before concurrent filing was started. Your priority date is farther back before any likely cutoff, so USCIS would concentrate more on cases like your own than newer ones.

Look, even when we had the priority date limitations, the only countries that were ever affected were India and China. Since then, AC21 has allowed USCIS to eliminate the per-country numerical limitations, which were what was holding back India and China, not the total number of immigrant visa numbers in the EB2 and EB3 categories.

Does anyone think that USCIS would go through all the trouble of putting together concurrent filing if the priority dates were going to retrogress? Concurrent filing is only done in cases when an IV number is always available, which are Immediate Relatives (by law) and Employment-Based (by lack of demand). That isn't going to change.

If there was a danger of running out of EB IV numbers, all USCIS is likely to do is slow down I-485 ajudications for a month or two right at the end of the fiscal year, which is when the H-1B filings are heavy, anyways.
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It's good that atleast few people comment appropriately about Murthy bulletin.

Retrogression of priority dates is the easy way to reduce backlog.
 
Even going back according to priority dates may not help the actual people who applied in 2001 and 2002.
Guess what ? There are more number of substitution labor cases used these days which may have priority dates in 2000 and 2001
 
Sri0009 said:
Guess what ? There are more number of substitution labor cases used these days which may have priority dates in 2000 and 2001
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Priority-date is alien-based, not petition-based. In plain English, that means that the priority date for the alien is set when his or her name first gets attached to the petition. In most cases, that means when the LC is filed. In NIW/EB-1 cases, it's when the I-140 is filed.

For a labor substitution case, it's when the I-140 is filed.
 
kvpt_mm said:
gurus: thoughts pls.. any idea what could be the date ?
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Hmmmmm.... interesting. Looks like I might be wrong in my original assessment. Let's see what DOS says in the October 2004 visa bulletin.
 
Confused!!!!

Some basic questions....

"If DOS retrogress the 485 priority dates by end of this year"

Does this mean that they will follow a FIFO from the time the dates retrogress?
Isn't that what should be happening right now?? I am under the impression that some 2001 cases have not be adjudicated because the officer sees some problem with the application. I could be wrong on this....

How will they determine the PD if it is a lobor substitution case? A company might be holding a labor for 3 years (technically the labor does not expire) and then file for the 140 and 485.
How will this be fair to regular filers who have gone throught the regular labor process?
 
NYGCSeeker said:
Some basic questions....

"If DOS retrogress the 485 priority dates by end of this year"

Does this mean that they will follow a FIFO from the time the dates retrogress?
Isn't that what should be happening right now?? I am under the impression that some 2001 cases have not be adjudicated because the officer sees some problem with the application. I could be wrong on this....

How will they determine the PD if it is a lobor substitution case? A company might be holding a labor for 3 years (technically the labor does not expire) and then file for the 140 and 485.
How will this be fair to regular filers who have gone throught the regular labor process?
Click to expand...

correct me if i am wrong,

Mine is Labor sub case. they filed my i-140 in april 2002 . But on approval letter it says the pirorty date as june 19 ,1999. that means. The priority date is the labour approved date , even though it is a labor sub case .

am i correct???

coming priroty date, if they retorgrate, then it cannot be different from service centre to serivce centre. because CSC is processing jan '03 , if they retograte what is the NEW PD will be , wait for INS next date realase then we have idea
 
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canus_immi,

I see that your I-140 was filed much later than the day labor was approved.

Do you know if a company has an approved labor, how long can it hold on to it before using it to apply I-140 ?

Is there any time frame imposed by USCIS? If the company waits too long, does the application gets more scrutiny?

Thanks.
 
Pd?

My Labor was filed in Nov 2001 and was approved in Oct 2002. What would be my PD? Nov 2001 or Oct 2002. My I-140/i-485 was filed in Dec 2002 and I-140 was approved in Sep 2003. I don't know what would be the cut-of date determined by DOS. Can you guys even guess what the date will be? Will my case be put on hold is the date is in 2001? Please reply when you get a chance.
 
I think all this applies to filing only and allocation of A#

I believe all the people on this forum already have a A# allocated to them. As far as I know (and I am not sure on this one), if A# is allocated, a visa has been reserved in your name. This A# becomes your Alien# on the Alien Registration Card (Green Card). The A# is allocated only if it is "available" which means that if you have a A# with you on your application, a visa is available and reserved for you. So need not worry.

In the old process, A# used to come out of 140 approval (which was done only when visa was available resulting in a visa number allocation). Since visas were available with 140 filing for EB petitions, USCIS came with the concurrent filing scheme because the only thing preventing an applicant from filing the 485 in the earlier scenario was availability of A#.

Future applicants do have a cause for concern. :) Best of Luck All !!!!
 
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dazzling said:
I believe all the people on this forum already have a A# allocated to them. As far as I know (and I am not sure on this one), if A# is allocated, a visa has been reserved in your name. This A# becomes your Alien# on the Alien Registration Card (Green Card). The A# is allocated only if it is "available" which means that if you have a A# with you on your application, a visa is available and reserved for you. So need not worry.
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This is incorrect. Alien numbers and visa numbers are two totally seperate issues. Visa numbers are only allocated when the I-485 is approved, not when it is filed and the A# is assigned.
 
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