Priority Dates to Retrogress in January
Source: US Visa News - http://www.usvisanews.com/articles/memo2342.shtml
What on earth is a "Priority Date" anyway?
The "Priority Date" of a visa case is the day it is officially placed in queue (or, as we Americans say "in line") for the permanent residency process. Priority dates are given to persons immigrating through relatives who are permanent residents or through employment with a U.S. company. In PT and RN cases, the date is set when the I-140 Petition is filed with the INS. In all labor certification cases, it is set when the labor cert is filed with the state job service. ("Immediate Relatives" are not subject to an annual numerical cap, so they don't get priority dates. That means that if 10,000,000 U.S. citizens marry foreigners, all of them can immediately immigrate.) Since employment based categories are "preference" visas, they have an annual numerical allotments per country. In countries with very little immigration (such as Iceland, for example), numbers are usually available. In countries with high rates of immigration to the U.S.- such as India- the number of people applying annually exceed the amount of available visas...so a backlog develops. The higher the number of applicants, the longer the backlog.
How Do Priority Dates Work?
Many variables come into play in the progression of a priority date: a family of five will take up 5 visa slots, while a single person will take only one. That means that if 10,000 visas are available for, as an example, India, and the first 2000 principal aliens (the employee) each have four family member (plus themselves), those two thousand petitions will use up the whole 10,000! On the other hand, if everyone had been single, 10,000 principal aliens would have gotten in and there would be no backlog. In addition, people drop out of the wait, some have spouses get their green card...in short, a million variables. In October, when the new fiscal year begins, more numbers become available. Sometimes, the State Department goes back and learns that the projected usage of visas has varied substantially in the past few months, and then they make adjustments causing dramatic retrogressions.
What Do We Mean When We Say The Priority Dates Will Retrogress?
For the last few years, employment-based applicants have been very lucky. If you visit the Visa Bulletin published by the Department of State to track priority dates, you will notice that there is "C" next to all categories. The "C" stands for current, meaning that there is no wait to file for permanent residence. If you look at the family-based petitions, you will see a very different story.
For example, if you look at the 4th preference category from India, brothers and sisters of United States citizens, you will see a date of February 15, 1992. That means that right now they are accepting I-485 applications and consular process applications from Indian brothers and sisters for whom an I-130 was filed on February 15, 1992.
What this means is that as of January of 2005, you will also see that dates for some employment-based categories, particularly the EB-3 category for India, the Philippines and China will go backwards. How far back? We do not know.
Here is an example to illustrate how this might work: let's say that you are an Engineer from India. Let's say that your labor certification was filed on January 1st of 2001. Your labor certification has now been approved and you are ready to file your I-140 and I-485. If the priority date has gone backwards beyond January 1st of 2001, it means that there aren't any visa numbers available for you. You can file the I-140 but you cannot file your I-485 until the priority dates move forward to January 1st of 2001 or beyond.
Who Should Be Concerned?
If you were born in mainland China, India or the Philippines and you are an employment-based applicant, you should be concerned. Note that the key is where you were born. For example, you were born in the Philippines but you are now a Canadian citizen the priority date that applies to you is the priority date for the Philippines NOT Canada.
What Can You Do?
If you were born in any of the countries mentioned above and you are eligible to file your I-485 but have not done so, you should endeavor to file it before the end of this year. Remember, you are eligible to file your I-485 if your labor certification has been approved.
If you are Physical Therapist or a Registered Nurse and you are in the United States either with a non-immigrant visa, you should apply for your I-140/I-485 before the end of the year if it is at all possible. For example, you are a PT presently in the U.S. in OPT status, you should apply for your I-140/I-485. Another common example would be a PT who does not have the Visa Screen and who will not be able to renew the H-1B when it expires in a few months. If that is you, you should apply for your permanent residence before the end of the year
Where Can I Look At The Priority Dates?
The State Department publishes a monthly Visa Bulletin to keep us apprised about the priority dates. You may find it on the following web page: http://travel.state.gov/visa/frvi_bulletincurrent.html
Remember, the employment-based categories are current for the time being. You will probably not see a change until January. Once more, please remember that this will probably only affect professionals from India, the Philippines and mainland China.
If you believe that you, or one of your employees, will be affected by the priority date retrogression, please contact our office.
Source: US Visa News - http://www.usvisanews.com/articles/memo2342.shtml
What on earth is a "Priority Date" anyway?
The "Priority Date" of a visa case is the day it is officially placed in queue (or, as we Americans say "in line") for the permanent residency process. Priority dates are given to persons immigrating through relatives who are permanent residents or through employment with a U.S. company. In PT and RN cases, the date is set when the I-140 Petition is filed with the INS. In all labor certification cases, it is set when the labor cert is filed with the state job service. ("Immediate Relatives" are not subject to an annual numerical cap, so they don't get priority dates. That means that if 10,000,000 U.S. citizens marry foreigners, all of them can immediately immigrate.) Since employment based categories are "preference" visas, they have an annual numerical allotments per country. In countries with very little immigration (such as Iceland, for example), numbers are usually available. In countries with high rates of immigration to the U.S.- such as India- the number of people applying annually exceed the amount of available visas...so a backlog develops. The higher the number of applicants, the longer the backlog.
How Do Priority Dates Work?
Many variables come into play in the progression of a priority date: a family of five will take up 5 visa slots, while a single person will take only one. That means that if 10,000 visas are available for, as an example, India, and the first 2000 principal aliens (the employee) each have four family member (plus themselves), those two thousand petitions will use up the whole 10,000! On the other hand, if everyone had been single, 10,000 principal aliens would have gotten in and there would be no backlog. In addition, people drop out of the wait, some have spouses get their green card...in short, a million variables. In October, when the new fiscal year begins, more numbers become available. Sometimes, the State Department goes back and learns that the projected usage of visas has varied substantially in the past few months, and then they make adjustments causing dramatic retrogressions.
What Do We Mean When We Say The Priority Dates Will Retrogress?
For the last few years, employment-based applicants have been very lucky. If you visit the Visa Bulletin published by the Department of State to track priority dates, you will notice that there is "C" next to all categories. The "C" stands for current, meaning that there is no wait to file for permanent residence. If you look at the family-based petitions, you will see a very different story.
For example, if you look at the 4th preference category from India, brothers and sisters of United States citizens, you will see a date of February 15, 1992. That means that right now they are accepting I-485 applications and consular process applications from Indian brothers and sisters for whom an I-130 was filed on February 15, 1992.
What this means is that as of January of 2005, you will also see that dates for some employment-based categories, particularly the EB-3 category for India, the Philippines and China will go backwards. How far back? We do not know.
Here is an example to illustrate how this might work: let's say that you are an Engineer from India. Let's say that your labor certification was filed on January 1st of 2001. Your labor certification has now been approved and you are ready to file your I-140 and I-485. If the priority date has gone backwards beyond January 1st of 2001, it means that there aren't any visa numbers available for you. You can file the I-140 but you cannot file your I-485 until the priority dates move forward to January 1st of 2001 or beyond.
Who Should Be Concerned?
If you were born in mainland China, India or the Philippines and you are an employment-based applicant, you should be concerned. Note that the key is where you were born. For example, you were born in the Philippines but you are now a Canadian citizen the priority date that applies to you is the priority date for the Philippines NOT Canada.
What Can You Do?
If you were born in any of the countries mentioned above and you are eligible to file your I-485 but have not done so, you should endeavor to file it before the end of this year. Remember, you are eligible to file your I-485 if your labor certification has been approved.
If you are Physical Therapist or a Registered Nurse and you are in the United States either with a non-immigrant visa, you should apply for your I-140/I-485 before the end of the year if it is at all possible. For example, you are a PT presently in the U.S. in OPT status, you should apply for your I-140/I-485. Another common example would be a PT who does not have the Visa Screen and who will not be able to renew the H-1B when it expires in a few months. If that is you, you should apply for your permanent residence before the end of the year
Where Can I Look At The Priority Dates?
The State Department publishes a monthly Visa Bulletin to keep us apprised about the priority dates. You may find it on the following web page: http://travel.state.gov/visa/frvi_bulletincurrent.html
Remember, the employment-based categories are current for the time being. You will probably not see a change until January. Once more, please remember that this will probably only affect professionals from India, the Philippines and mainland China.
If you believe that you, or one of your employees, will be affected by the priority date retrogression, please contact our office.
