Earlier many of us were happy that as per AILA's report, the effect of retrogression might be significantly reduced. Now lawyer Mathew Oh has come out with the some analysis as to why this exuberance might be showtlived and why we need to fight for legislative reform with respect to Employment Based Green Cards. So remember "It aint over till its over".
Here is an excerpt of his analysis from http://www.immigration-law.com/
Here is an excerpt of his analysis from http://www.immigration-law.com/
- The State Department's new prediction is derived from two changed circumstances. One is the slow-down of I-485 adjudications by the USCIS and the resultant decrease of the EB visa numbers demand on the part of the USCIS. The second factor is the delays in processing of the old labor certification cases in the Backlog Eliminination Centers of the DOL. It is not clear what has caused the decreased visa number demand from the USCIS EB-485 proceedings, but it may have something to do with the on-going reengineering of the USCIS processing and adjudication system. As for the Backlog Elimination Centers, they have yet to complete the ground work of data entry and 45-day letters, before they can focus on adjudication of the backlog applications. Currently, the USCIS is scheduled to complete the reengineering by the end of September 2006 and the DOL is scheduled to complete the ground work of data entries and 45-day letter processing by approximately the end of June 2006. As we reported earlier, a substantial number of these BEC cases are known to be 245(i) cases, meaning that the cases were filed in traditional regular application type of EB-3 in most cases on or before April 30, 2001. A substantial number of these cases have yet to go through the "supervised" recruitment process to complete the labor certification processing and it will take a substantial period of time before these cases will move into the USCIS I-485 processing system.
- From the foregoing analysis, one can predict that the big winners of the new prediction may include (1) those old priority date I-485 cases pending before the USCIS including 245(i) cases which may be approved within next several months; (2) those old priority date I-140 cases pending before the USCIS which may at least move into the I-485 phase and getting the benefits of EAD, AP, and AC 21 change of employment eligibility; and (3) those old priority date backlog labor certification cases which can move into the I-140/I-485 concurrent filing phase upon approval of the delayed backlog labor certification processing with the ancillary benefits that come along with the filing of I-485 applications such as EAD, AP, and AC-21 change of employment benefits. It is anticipated that the cases under the foregoing (3) may remain very limited in numbers due to the BEC processing delays.
- The real losers may turn out to be those with late priority dates. Once the USCIS reengineering work is completed by the end of this fiscal year and the BECs start processing backlog cases en masse around the end of this fical year, the stream of visa number demand will move into the State Department visal allocation system. The pressure to the allocation system will mount tremendously as time passes, and unless the Comprehensive Immigration Reform legislation brings a cure to the current ailing immigrant visa quota system within this year, it is likely that these late priority date cases may experience tremendous difficulties due to the stand-still or further retrogression of the visa numbers and the resultant unavailability of the ancillary benefits of EAD, AP, and AC 21 change of employment opportunities. It is anticipated that the real crisis may be witnessed beginning the end of this calendar year as by that time it is anticipated that the BECs are expected to pump out certifications of backlog cases.
- It is thus obvious that the new prediction of the State Department can turn out to be a short-lived relief for a limited number of immigrants and a sign of foreseeable dark cloud and storm moving into the visa number system for most of the immigrants. The only answer to the clogged employment-based immigration system lies with the reform of the employment-based immigrant quota allocation system and related reform, including but not limited to (1) dependants immigration without taking out visa numbers from the employment-based quota system and (2) eligibility of I-485 applications for those who attained the labor certification approvals or I-140 petitions even during the period of visa number unavailability. For these reasons, the immigrant community should not stop its efforts to bring back (1) the legislative proposals which were reflected in the failed Section 8001 and 8002 of S. 1932 and (2) the adjustment of EB-immigrant quota substantially upward as reflected in the McCain-Kennedy bill.
, once the 245(i) cases are out of the back log centers ??