Priority Date Retrogress: Impact on Employment based petition

S

Sam B.

Registered Users (C)
Terrible News for EB3 : Backlog Reduction may Impact Priority Dates

Backlog Reduction may Impact Employment Priority Dates

http://www.murthy.com/news/n_bacred.html

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? 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, which we make available on MurthyDotCom.
 
Hi,

well according to the latest update for the visa bulletin that EB-3 categories visa numbers will be backlogged by jan 2005 this means:

part 1- if somebody will aplly for i 140 and i 485 after jan 2005, he will face a problem of not able to file for i 485 because the condition to apply for i 485 is that visa numbers are current at the moment u apply i -485.

part 2- act 21 century states that in order to get the 7 th year extension u need that ur i-140 be approved and ur i-485 be pending for more than 6 months. but after jan 2005, according to part 1, there will not be a way to fill i-485 , this means that act 21 century or 7 th year extension will not be available anymore unless ur labor certificate pended for more than 1 year.

part 3- if the visa number is not available, this means that u can't apply for an EAD and AP, as i understand it.i'm not sure about this point.

overall, having no visa numbers when reaching USCIS will be a big problem on many people and things will get worse if the current thinking for administration remain against employment immigration.

regards,

N.B: this is my opinion, i'm not a lawyer.
 
What is going On..

Hi Guys,
I really didnot understand what is all about this? I applied my Labor certification in EB3 non rir from CO in Dec 2001. Now .. now after almost three years last week DOL asked to advertise.. It may take 6 months for(SESA+DOL) my LC to clear ... Now what is the deadline of Jan 2005.. can somebody explain what is this in detail.. that will be great..
Thanks in advance..
KK
 
united nations: I would like to send u PM or email. Could you please send me a PM how I can do that. I have something very important to ask u. I would really appreciate that.
 
Guys,
this issue is going to be more and more important soon - we need to understand the situation and get Rajiv/other attorneys/AILA to intervene.
1. Will people be allowed to file 485 even if visa numbers are not current? AC-21 was supposed to allow freedom from serfdom - will that be implemented in its true meaning. Will people get EAD/AP just by filing 140. MOre importantly, will you be allowed to change jobs even if you cannot file 485 and 140 is approved. Lots of questions, lots of grey areas.
 
Hi UnitedNations,
Can you clarify belowthings..
I'm not sure of the accuracy of the information from the threads above. Here is how the priority dates work.

Currently, the visa categories for employment based are all current. Therefore, once the labor certification is approved you are free to file 140 and 485.

Currently, the visa categories for employment based are all current. Therefore, once the labor certification is approved you are free to file 140 and 485 -
What deos this mean .. and how does it relates to my Labor Certification whics is applied in 2001 Dec and still at SESA level?


Once uscis reaches the quota limit for visas they will issue a priority date and if your priority date is after that date then you will only be able to file a 140. You will only be able to file 485 once the priority date is after your priority date.
What is this quota and how does my Labor relates to visas?


Now here is where it gets interesting. For employment based applications which require a labor certification, the priority date is the date labor was filed with the state department of labor. There was a backlog in 2001 cases which still haven't been approved. Once they are approved the 2001 date will determine whether you will be able to file a 485.

The people who will be in trouble are the ones who have already filed 140/485 and they came from fast processing states. For example, my labor priority date is june 2002 and I have already gotten my 140 approved and 485 is applied. However, if they run out of visas and uscis comes out with a date that only applications with priority dates prior to May 2002 can apply 485; what that would mean is that my 485 could not be processed, however, since your priority date is in 2001 you will jump over me and be able to file 485 and get approval before me.

How much I need to worry on this as I am on EB3 .. still at SESA..

Thanks alot for your previous posting.. Just frustated and saw a ray of light and now all of a sudden this thing when the ad is going on..
Thanks
KK
 
unitednations said:
They would still be able to file 7th year extension on h-1b in three scenarios:

1) labor has been pending for more than 365 days and not approved yet.

2) labor has been approved is older than 365 days and a 140 has been filed. You don't need to have a 485 filed.

3) in case where a labor is not required then the 140 has to be outstanding for more than one year.
Click to expand...

United Nations: I would like to send u PM or email. Could you please send me a PM how I can do that. I have something very important to ask u. I would really appreciate that.
 
Guys,
What I also saw on Murthy .com is that the "retrogress" is a "possible" possibility for the "Other worker" category which is a sub category of EB3.
It implies that EB3 category on the whole will not be affected if the "Other worker" subcategory is oversubscribed. we will have to wait till Oct 1st 2004 to find out the Visa number status for FY 2005
Murthy ::
"The only proviso for employment-based cases is that it is possible for a backlog to develop in the Employment Third Preference (EB3), Other Worker category. This is a subcategory of EB3 for unskilled and semiskilled workers and does not impact other EB3 cases. The reason for the potential backlog in this segment is that some of these cases have been pending for a long time, particularly those filed on or around April 2001. As the labor certifications and I-140 petitions in these cases are finally approved, there may be an excess demand for visa numbers. However, DOS indicated that if this does occur, it should not happen until the summer of 2004. "
 
Hi UnitedNations,
First of all thanks alot for taking tike to reply my questions. Final question.

You are actually in a good situation. Once your labor gets approved your priority date will be December 2001.

Assume my labor is not cleared in by Jan 2005 .. what will be my situation... am I going to be safe even then.. just your thoughts.. or do you suggest me to talk to my attorney?

Thanks
KK
 
Letter to Mr. Rajiv Khanna

I have sent this letter to Mr. Rajiv Khanna.

-------------------------------------------------------------------
Good Evening, Mr. Khanna.
It has come to the attention of the immigration forum that certain employment based categories, especially EB3, might be soon affected by Visa number unavailability. Under those circumstances, the misery of people already waiting in queue for years to get their Permanent residency will be further exacerabated. As part of the same community, I have a few questions as well as suggestions.
1. Will USCIS allow concurrent filing of 485/140 even if Visa number is not available?
2. Will benefits of Ac-21 be available to people in case they are unable to file for 485?
A few suggestions (in case current law does not allow such freedom):
Some reforms that may be considered
1. Allow filing of 140/485/AP/EAD even though visa number is not available.
2. Adjudicate 140 separately and allow AC-21 to be used 180 days after filing 140.
3. Allow people to enjoy atleast the benefits of AC-21 even though their visa numbers may not be readily available.

We need to move forward and do something about this ticking timebomb that can potentially ruin our future, or severely curtail our freedom of
employment.

Sincerely,
Rajatish
 
usnycus said:
This might also affect people who are planning to bring their spouse as FTJ.
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well, seing this problem of backlog in visa numbers , i have a question here.

ok, if let's say a man his lc was filled in jan 2002 , so his priority date is jan 2003, then he applied for ins after jan 2005, but this guy has a spouse and a kid as dependent and he wana apply for them too to get GC.

ok here is my question:when the visa numbers r backlogged,will his priority date be 2002 by himslef whereas for his spouse and child the date that they apply to inS which is after jan 2005, so it means they can't apply altogether for green card, in other word he gets first the green card?
or everbody will be considered for january 2002 which is the priority date of the guy?

it is very important issue to know because this may affect many people that have family as dependents.
regards,
 
if the primary applicant and his spouse and his son apply for visa numbers would they get out of the quota 3 visa numbers or just one?i mean if they get a green card at the end, would they take 3 visas from the way of other people or just one?
 
Retention and Transfer of Priority Date

Retention and Transfer of Priority Date: Once I-140 petition is "approved," the priority date is attached to the alien beneficiary. Accordingly, even if the alien changes the employment and start a new employment-based immigrant proceeding, his/her prior priority date is retained and grandfathered. Priority date is not attached for the purpose of the retention even if labor certification approved until the I-140 petition is filed and "approved." Once attached, the priority date can be cross-transferred among EB-1, EB-2, and EB-3 once the priority date in one of these classifications is attached and retained. Retained priority date can be transferred only among EB-1, EB-2, EB-3, and cannot be transferred from or to Investor Immigrant Petition (I-526) or Special Immigrant Petition (I-360). Retained priority date cannot be transferred from or to family-based immigrant petition (I-130).
 
My case EB2 or EB3?

After seeing the issue of visa avilability, I have concern over my class of case.

My LC is pending with DOL. The position requires "BS degree and 6 years experience" No MS requirements. I have BS with 10 years of experience.

Is my case EB2 class or EB3 class?
 
Three

antonioa77 said:
if the primary applicant and his spouse and his son apply for visa numbers would they get out of the quota 3 visa numbers or just one?i mean if they get a green card at the end, would they take 3 visas from the way of other people or just one?
Click to expand...
 
is it affecting all countries ?

Are cut off dates established for each country separately ?

Do I have to worry if I have EB3 labor filed in 2002 but I am neither from India, China, Filippines, Mexico and my country has marginal contribution to employment based immigration.
 
See Inline...

azzuri said:
Are cut off dates established for each country separately ?
... Yes. But DOS only lists countries which are over-subscribing visa number. Currently India, Mexico and Philippines are listed separately, all other countries are current.

Do I have to worry if I have EB3 labor filed in 2002 but I am neither from India, China, Filippines, Mexico and my country has marginal contribution to employment based immigration.
... I think you should be fine.
Click to expand...
 
usnycus said:
See Inline...
Click to expand...

so from what i understand, it seems that Eb-3 for countries like india and china and mexico will be backlogged, but not for countries low in immigrants to usa?

regards,
 
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