Source: www.immigration-law.com
10/30/2004: Anticipated EB Priority Date Retrogression, AC-21, and Survivability
* In about two weeks or so, the immigrant community will see the January 2005 Visa Bulletin. According to the State Department prediction, some categories of employment-based cases may see retrogression of visa numbers. In most likelihood, the potential candidates are China and India and EB-3 rather than EB-2 or EB-1. It is anybody's guess at this time when it comes to a question "how steep the number may move backward."
* The old timers may remember that the oversubscription of the employment-based visa numbers was the norm rather than exception in old days. In this regard, the current immigrants in this country in fact enjoyed heiday in that the visa numbers have been "current" in all employment-based categories. Here we will look at the impact of retrogression on the immigrants.
* In old days, no matter how long it took, the alien had to keep the employment with the sponsoring employer or otherwise they lost the opportunity to adjust status to a lawful permanent resident. Things have changed since then. Now, we have AC-21 that allows the alien to change employment after 180 days of I-485 filing and the aliens have a better chance to survive while awaiting the visa numbers and approval of I-485. That much, the immigrants of today are luckier than the old immigrants.
* However, don't jump yet! Here are the bad parts. Currently, I-485 applicants cannot change employment unless the I-140 is "first approved." Accordingly, not every I-485 waiter will have a luck to survive. Worse yet, there is a pontential policy that will come into play once the visa number becomes unavailable - a policy of not adjudicating I-140 petitions for those cases for which visa numbers are not available. Indeed, the legacy INS adopted such policy in old days. Even now, in the family-based immigrant petitions (I-130), the USCIS adopts exactly this policy in that the Service Centers do not process I-130 immigrant petitions until the visa numbers become available. Such policy is justified in that it will be effective use of given resources to adjudicate the petitions for those whose I-485 can also be adjudicated because the visa number is available. On the other hand, arguably, the resources are allocated for wrong cases if the USCIS adjudicates I-140 petitions for which visa numbers are not available and even if the I-140 is approved, the alien will not be able to get his/her I-485 adjudicated for a long time until the visa number becomes available for him or her. Thus, should this policy be revived by the USCIS, the immigrants of the retrogressed categories will indeed witness a nightmare. If visa number is not available, it is likely under this policy that the USCIS will not adjudicate I-140, no matter whether it is filed independently or concurrently with I-485. Since I-140 will not be adjudicated until the visa number becomes available, the aliens may not be able to change employment even if they file a concurrent I-140/I-485 package. Depending on how long it will take to reach the numbers, the system will produce a plenty of I-485 filer victimes who may not be able to survive the test of the times unless the economy really turns around and there will be plenty of jobs for everyone. In this regard, retrogression means more than "just waiting."
* Who will be real winners? The real winners are three groups: One is the group who have attained the approval of I-140 petitions when his/her I-485 application is tolled because of the retrogression in that the people in this group can change employment and survive while his/her visa number becomes current in the Visa Bulletin. The second group is those who happen to have earlier priority date because of the terrible pains they have endured for the past several years. There are a huge number of people who have been waiting and waiting "for years" to get the labor certification applications. The pain must have been unbearable. But these people will be rewarded for their past suffering. The DOL has decided to process 300,000-some backlog cases in the order of First In First Out, and longer they had waited, sooner they will see the labor certification applications be adjudicated. Besides, since their priority dates (labor certification application filing dates) go back several years, even if the visa numbers move backward, they may not be caught up by the "visa cut off date" unless the Visa Bulletin moves backward many many years. From here on, it is extremely important that they may not want to abandon the pending labor certification cases to go for a new labor certification application or substitution route since they will lose the old priority date. The third group is those who are not caught up with the visa number unavailability. Most of the nationals other than the oversubscribed nations will be benefited from the retrogression in that should the USCIS decides to adjudicate I-140 petitions and I-485 applications for whom visa numbers are available, more resources will become available within the Service Centers to adjudicate their cases and they will be able to get approval of I-140 and I-485 sooner than expected, assuming that the USCIS indeed decides not to adjudicate I-140 petitions for those whose priority dates are not available. INDEED, LIFE IS A GAMBLE!!
10/30/2004: Anticipated EB Priority Date Retrogression, AC-21, and Survivability
* In about two weeks or so, the immigrant community will see the January 2005 Visa Bulletin. According to the State Department prediction, some categories of employment-based cases may see retrogression of visa numbers. In most likelihood, the potential candidates are China and India and EB-3 rather than EB-2 or EB-1. It is anybody's guess at this time when it comes to a question "how steep the number may move backward."
* The old timers may remember that the oversubscription of the employment-based visa numbers was the norm rather than exception in old days. In this regard, the current immigrants in this country in fact enjoyed heiday in that the visa numbers have been "current" in all employment-based categories. Here we will look at the impact of retrogression on the immigrants.
* In old days, no matter how long it took, the alien had to keep the employment with the sponsoring employer or otherwise they lost the opportunity to adjust status to a lawful permanent resident. Things have changed since then. Now, we have AC-21 that allows the alien to change employment after 180 days of I-485 filing and the aliens have a better chance to survive while awaiting the visa numbers and approval of I-485. That much, the immigrants of today are luckier than the old immigrants.
* However, don't jump yet! Here are the bad parts. Currently, I-485 applicants cannot change employment unless the I-140 is "first approved." Accordingly, not every I-485 waiter will have a luck to survive. Worse yet, there is a pontential policy that will come into play once the visa number becomes unavailable - a policy of not adjudicating I-140 petitions for those cases for which visa numbers are not available. Indeed, the legacy INS adopted such policy in old days. Even now, in the family-based immigrant petitions (I-130), the USCIS adopts exactly this policy in that the Service Centers do not process I-130 immigrant petitions until the visa numbers become available. Such policy is justified in that it will be effective use of given resources to adjudicate the petitions for those whose I-485 can also be adjudicated because the visa number is available. On the other hand, arguably, the resources are allocated for wrong cases if the USCIS adjudicates I-140 petitions for which visa numbers are not available and even if the I-140 is approved, the alien will not be able to get his/her I-485 adjudicated for a long time until the visa number becomes available for him or her. Thus, should this policy be revived by the USCIS, the immigrants of the retrogressed categories will indeed witness a nightmare. If visa number is not available, it is likely under this policy that the USCIS will not adjudicate I-140, no matter whether it is filed independently or concurrently with I-485. Since I-140 will not be adjudicated until the visa number becomes available, the aliens may not be able to change employment even if they file a concurrent I-140/I-485 package. Depending on how long it will take to reach the numbers, the system will produce a plenty of I-485 filer victimes who may not be able to survive the test of the times unless the economy really turns around and there will be plenty of jobs for everyone. In this regard, retrogression means more than "just waiting."
* Who will be real winners? The real winners are three groups: One is the group who have attained the approval of I-140 petitions when his/her I-485 application is tolled because of the retrogression in that the people in this group can change employment and survive while his/her visa number becomes current in the Visa Bulletin. The second group is those who happen to have earlier priority date because of the terrible pains they have endured for the past several years. There are a huge number of people who have been waiting and waiting "for years" to get the labor certification applications. The pain must have been unbearable. But these people will be rewarded for their past suffering. The DOL has decided to process 300,000-some backlog cases in the order of First In First Out, and longer they had waited, sooner they will see the labor certification applications be adjudicated. Besides, since their priority dates (labor certification application filing dates) go back several years, even if the visa numbers move backward, they may not be caught up by the "visa cut off date" unless the Visa Bulletin moves backward many many years. From here on, it is extremely important that they may not want to abandon the pending labor certification cases to go for a new labor certification application or substitution route since they will lose the old priority date. The third group is those who are not caught up with the visa number unavailability. Most of the nationals other than the oversubscribed nations will be benefited from the retrogression in that should the USCIS decides to adjudicate I-140 petitions and I-485 applications for whom visa numbers are available, more resources will become available within the Service Centers to adjudicate their cases and they will be able to get approval of I-140 and I-485 sooner than expected, assuming that the USCIS indeed decides not to adjudicate I-140 petitions for those whose priority dates are not available. INDEED, LIFE IS A GAMBLE!!
