Priority Date Retrogression: Read This before Freaking Out

T

TheRealCanadian

Volunteer Moderator
Lots of folks have been posting worried questions about the impending retrogression of Priority Dates in EB3. To avoid worrying, I am trying to answer some common questions for you. Remember, I'm not an attorney nor do I know what is going to happen, but I can provide some educated information and update it as time passes.

What is a Priority Date?

The US gives out immigrant visa numbers based on priority. Basically, the longer you are waiting, the higher your priority in getting a visa number. The only time this comes into play is if there is more demand for visa numbers than available. In Employment-Based categories, because of the tremendous backlog in Labor Certifications and INS/USCIS processing, all categories have been undersubscribed and there has been no wait. There were numbers for everyone, so all categories were CURRENT.

If you have an Employment-Based Green Card petition, your Priority Date is the date your Labor Certification was RECEIVED by the state. If you are filing in a category that does not require a Labor Certification like EB-1, EB-2/NIW or a Schedule A EB-3 occupation (RN or Physical Therapist) then your Priority Date was the date your I-140 was received by INS/USCIS. If you are the beneficiary of a Labor substitution case, I don't know. It might be the LC receipt date at the state level, or the I-140 RD. Ask your lawyer.

Are all EB-3 dates going to retrogress?

No. There is a limit of how many visa numbers in each category can be assigned to people born in a particular country. The limit is about 7% of the total, along with any unused numbers for that category. Retrogression is going to affect the countries with the largest number of EB3 applicants. That means India, China and maybe the Phillipines. If you were not born in any of these three countries, it is exceptionally unlikely that EB3 retrogression will affect you. Stop worrying now.

When will I know when the dates will retrogress?

The Department of State puts out the Visa Bulletin every month around the 15th of the month. This lists the priority dates for the NEXT month. EB3 is predicted to retrogress in January 2005, so you will know on or around December 15th, 2004.

My I-140/485 is pending and my priority date isn't current.

Don't worry. You will NOT fall out of status. Your I-485 will NOT be cancelled. It will just sit on a shelf until your priority date becomes current again. You can still renew your EAD/AP/H/L, etc. However, if you are a concurrent filer, it is unlikely that USCIS will ajudicate your I-140 and give you AC21 benefits.

My LC just got approved, and the new Visa Bulletin is out. Am I out of luck?

If the dates for your category are going to retogress NEXT month, you have around 15 days to ensure that you and your attorney file your I-140/I-485 right away. Don't dawdle, but at the same time make sure the I-140 application is strong - haste now coud lead to an I-140 denial and more headaches. Make sure the application is tight and solid.

LC approved, but didn't make it in time. What now?

Well, the bad news is that you cannot file an I-485. The good news is you can file an I-140, so do so. It might get ajudicated right away, or it might wait until your priority date becomes current. Either way you are better off than in the old days since you can get a 7th year H. If your I-140 gets approved seperate from your I-485 you'll get AC21 benefits earlier.
 
TheRealCanadian said:
Retrogression is going to affect the countries with the largest number of EB3 applicants. That means India, China and maybe the Phillipines. If you were not born in any of these three countries, it is exceptionally unlikely that EB3 retrogression will affect you. Stop worrying now.
Click to expand...

The problem is that most of the forum members here are from above countries.
 
Will USCIS accept I-485 applications ?

Dear Real Canadian:

Let say I have an approved Labor Cert (or using a sub Labor), but I have not applied for I-140/485. Now lets assume USCIS regresses the priority dates to (say 2001).

You suggest that I apply for I-140 immediately.

Here is my question - Can I apply for I-485 ? Will USCIS atleast accept my application and give me a receipt number or they will simply return my application also ?

I know I can apply for EAD/AP and keep renewing them till I get my I485 ...


thanks for calrifying ....
 
About Sub Labor Cert and Priorityu Dates.

11/01/2004: Substitution of Labor Certification Beneficiary Alien and Priority Date

Potential retrogression of the visa numbers in January 2005 brings back the issue of priority date on the spotlight. Under the immigration rule, the alien beneficiary "retains" the priority date once the labor certification is approved "and" I-140 petition is approved. Accordingly, unless the I-140 is revoked or the labor certification application is revoked, this specific alien retains the priority date established by the labor certification application. The same alien thus retains the priority date even if the alien starts a new labor certification application with the same employer or another employer. The concept of priority date is thus "alien-based" and the specific alien carries with him or her the priority date.
The priority date is not only "alien-based" but also limited to a specific alien and cannot be transferred to another alien. Consequently, an alien who files I-140 petition as the substituting beneficiary of an approved labor certification application takes over the approved labor certification application but not priority date. Accordingly, an alien who files I-140 petition as a substituting alien establishes his/her priority date at the time of filing of his/her I-140 petition and not on the date of filing of alien labor certification application by the employer on behalf of the original alien beneficiary who is substituted. The regulation specifically states that a priority date is not transferrable to another alien.


http://www.immigration-law.com (Brekaing News).
 
Thats a good news for long time labor certification sufferers. Atleast USCIS has some way to give a brake to some "shortcut" ways like labor substitution, atleast if they can't implement FIFO, someway this is good.
Logically PD should be alien based and thats what it is.
I wonder hardly there would be anyone who's labor is pending in SESA for past 4+ yrs and is still waiting.
Some of them must have gone by labor subsitution way thru forum shoppers or refiled from fast processing states.
 
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msd_gc said:
You suggest that I apply for I-140 immediately. Here is my question - Can I apply for I-485 ? Will USCIS atleast accept my application and give me a receipt number or they will simply return my application also?
Click to expand...

First off, you will have 15 days' notice of a PD retrogression. It's advance notice, but not a lot. Once the Visa Bulletin comes out, your I-140/485 package needs to be received by USCIS before the first of the next month. If you don't make that deadline, your PD will no longer be current and your I-485/131/765 will all be rejected. USCIS may or may not cash your checks.

Again, if your PD is current, file the I-485 with the I-140. That will keep you in status, give your dependents an EAD and all that good stuff.

However, you should not rush into filing an incomplete or weak I-140 application just to get the I-485 filed. USCIS has much more leeway to deny incomplete I-140 applications instead of issuing RFEs. What that will mean for you in practice is that your I-485 will also get denied, and since the PD will have retrogressed you cannot refile. You're therefore out a lot of money.

The best thing to do is not put yourself in such a situation. Ensure that you have all of your experience letters and I-140 supporting docs ready even before the LC is done; what should happen for you is that when the LC is approved, before your attorney gets the paperwork you should have your HR department sign the I-140 papers so that you can ship it out. Get your medicals lined up, and fill out the G-325A forms for everyone.
 
TheRealCanadian said:
Lots of folks have been posting worried questions about the impending retrogression of Priority Dates in EB3. To avoid worrying, I am trying to answer some common questions for you. Remember, I'm not an attorney nor do I know what is going to happen, but I can provide some educated information and update it as time passes.

What is a Priority Date?

The US gives out immigrant visa numbers based on priority. Basically, the longer you are waiting, the higher your priority in getting a visa number. The only time this comes into play is if there is more demand for visa numbers than available. In Employment-Based categories, because of the tremendous backlog in Labor Certifications and INS/USCIS processing, all categories have been undersubscribed and there has been no wait. There were numbers for everyone, so all categories were CURRENT.

If you have an Employment-Based Green Card petition, your Priority Date is the date your Labor Certification was RECEIVED by the state. If you are filing in a category that does not require a Labor Certification like EB-1, EB-2/NIW or a Schedule A EB-3 occupation (RN or Physical Therapist) then your Priority Date was the date your I-140 was received by INS/USCIS. If you are the beneficiary of a Labor substitution case, I don't know. It might be the LC receipt date at the state level, or the I-140 RD. Ask your lawyer.

Are all EB-3 dates going to retrogress?

No. There is a limit of how many visa numbers in each category can be assigned to people born in a particular country. The limit is about 7% of the total, along with any unused numbers for that category. Retrogression is going to affect the countries with the largest number of EB3 applicants. That means India, China and maybe the Phillipines. If you were not born in any of these three countries, it is exceptionally unlikely that EB3 retrogression will affect you. Stop worrying now.

When will I know when the dates will retrogress?

The Department of State puts out the Visa Bulletin every month around the 15th of the month. This lists the priority dates for the NEXT month. EB3 is predicted to retrogress in January 2005, so you will know on or around December 15th, 2004.

My I-140/485 is pending and my priority date isn't current.

Don't worry. You will NOT fall out of status. Your I-485 will NOT be cancelled. It will just sit on a shelf until your priority date becomes current again. You can still renew your EAD/AP/H/L, etc. However, if you are a concurrent filer, it is unlikely that USCIS will ajudicate your I-140 and give you AC21 benefits.

My LC just got approved, and the new Visa Bulletin is out. Am I out of luck?

If the dates for your category are going to retogress NEXT month, you have around 15 days to ensure that you and your attorney file your I-140/I-485 right away. Don't dawdle, but at the same time make sure the I-140 application is strong - haste now coud lead to an I-140 denial and more headaches. Make sure the application is tight and solid.

LC approved, but didn't make it in time. What now?

Well, the bad news is that you cannot file an I-485. The good news is you can file an I-140, so do so. It might get ajudicated right away, or it might wait until your priority date becomes current. Either way you are better off than in the old days since you can get a 7th year H. If your I-140 gets approved seperate from your I-485 you'll get AC21 benefits earlier.
Click to expand...
What would be the bottomline for those whose 140 is already approved and 485 is pending for < 180 days?.
Also what do you mean by

TheRealCanadian said:
However, if you are a concurrent filer, it is unlikely that USCIS will ajudicate your I-140 and give you AC21 benefits
Click to expand...
 
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Hi Msd_gc

This is in reference to the labor substitution priority date

see my signature for further details.

I used a labor substitution which had a priority date of 11 may 1998 and I filed my I-140 on 25 Nov 2002 and got it approved in Jan 2004. Then I received a I-140 approval notice which clearly said that my priority date is 11 may 1998 and NOT 25 Nov 2002.
Then I applied for my I-485 on 24 Feb 2004.

Apart from my case, I have 2 other friends who used labor substitution (one is already approved for greencard and the other has I-140 approved)

the one (whose I-140 got approved 2 months back) filed concurrently in April 2004 and his I-140 got approved recently and his I-140 approval notice states the priority date as his original labor filing date which was substituted for him and NOT his I-140/I-485 filing date of April 2004


so these real life examples clearly state that even in labor substitution case, the original priority date is applied to the substituted person also no matter when he files his I-140/I-485


Hope this is clear

So I request people not to give false/incomplete infomation which can have bad effect on other people.

Thank You


Note: Please read the section "9FAM 40.51 N4.5 Substitution Of Beneficiary On Approved Labor Certification" on Page 6 and judge for urself.
 
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Pd! Pd! Pd! Pd! Pd! Pd! Pd!

thanks Explorer19:

That was very encouraging. I guess I dont have to worry about Pd regressing now.
 
Hello PD,

I am also interested in Labor Substitution. Could you possibly give me some leads?

Thanks

You could send me a private message.
 
Having an agenda

Dear Friends,

Please take a few minutes to reflect on this.

If priority date retrogresses well there is not much one can do about it. However the two issues of major importance to us are

1. If we have filed concurrently 140 and 485, will our 140 be processed even though the 485 might be processed when our priority date becomes current.

2. If we have yet to file and 140 is accepted, still 485 might not be accepted and in essence all new filers might lose out on the biggest reform of AC21.

Both the above two cases are acts against the spirit of the AC21 and will threaten the survival of large numbers in case of economic challenges over the years.

Hence we might all be served by thinking of, if that happens, whether we should start a class action to challenge and examine in depth proposed changes that would seriously violate AC21 which was devised by the congress

Even if PD retrogresses the least that can be done for immigrants is their 140 is processed seperately even if 485 is pending and

485 is accepted even after the cutoff date even if it be processed when the date becomes current.

Hence maybe we might be better served by at least thinking along those lines and getting mentally prepared. A little contribution by all of us at the right time would become a decent amount and we could hire Mr. Rajiv Khanna for a lumpsum amount to challenge the changes that violate an act of Congress.

At the very least we can mentally start preparing for it and getting members involved. So if the change comes we lose no time in moving against it.

Just my humble self ideas. Thanks for reading the same.

Strenght in the world comes in being united for a common good that progresses a just cause. If that spirit is not appreciated in the US judiciary.....where else in the world would it be?
 
Explorer19 said:
Then I received a I-140 approval notice which clearly said that my priority date is 11 may 1998 and NOT 25 Nov 2002.
Click to expand...

I wouldn't trust that. My I-140 approval notice stated no PD, and the receipt for my I-485 said that my priority date was the same as my I-485 receipt date. The only time I ever saw a proper accounting of my PD was at the time of my I-485 interview.

You make the huge assumption that USCIS checked and explicitly noticed that your case was an LC substitution case. I don't trust them enough to make that assumption.

Note: Please read the section "9FAM 40.51 N4.5 Substitution Of Beneficiary On Approved Labor Certification" on Page 6 and judge for urself.
Click to expand...

That's an interesting link. As DOS is the Department which assigns priority dates for IVs, it's important, but everything I've read thus far indicates that the priority date is alien-based, not LC based.
 
Dear Real Canadian , i've aplied for 140 in october 2001(priority date) , wich was aproved in 2003 , from here i've aplied for 485 , and i'd like to know that is my priority date for 485 is October 2001 , or the date when i received the notice from TSC for my 485 aplication ???
 
11/01/2004: Retrogression of Visa Numbers and Effect of Pending I-485 and Ancillary Applications of EAD/Advance Parole
• Obviously when the visa number retrogresses, question arises with respect to the pending I-485 application and eligibility for EAD and Advance Parole during the period of the visa number unavailabity. This is a policy issue rather than a legal issue.
• Traditionally, the legacy INS held in abeyance pending I-485 applications during the period of visa number unavailabity and the status of the 485 applicants were deemed in status pending availability of the visa numbers and the subsequent adjudication of I-485 application. During such period, the legacy INS also exercised discretion and issued EAD and Advance Parole and extension of EAD and Advance Parole. It is likely that the USCIS may retain such policy if the visa numbers retrogress next year.
• When visa number retrogresses, the consular processing of immigrant visa is riskier than I-485 option in that neither EAD nor Advance Parole will be available during the period of visa number unavailable when one opts for the consular processing, while in the I-485 option, the alien will be able to keep obtaining and extending EAD.

11/01/2004: Substitution of Labor Certification Beneficiary Alien and Priority Date
• Potential retrogression of the visa numbers in January 2005 brings back the issue of priority date on the spotlight. Under the immigration rule, the alien beneficiary "retains" the priority date once the labor certification is approved "and" I-140 petition is approved. Accordingly, unless the I-140 is revoked or the labor certification application is revoked, this specific alien retains the priority date established by the labor certification application. The same alien thus retains the priority date even if the alien starts a new labor certification application with the same employer or another employer. The concept of priority date is thus "alien-based" and the specific alien carries with him or her the priority date.
The priority date is not only "alien-based" but also limited to a specific alien and cannot be transferred to another alien. Consequently, an alien who files I-140 petition as the substituting beneficiary of an approved labor certification application takes over the approved labor certification application but not priority date. Accordingly, an alien who files I-140 petition as a substituting alien establishes his/her priority date at the time of filing of his/her I-140 petition and not on the date of filing of alien labor certification application by the employer on behalf of the original alien beneficiary who is substituted. The regulation specifically states that a priority date is not transferrable to another alien.

10/30/2004: Anticipated EB Priority Date Retrogression, AC-21, and Survivability
• In about a month and 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!!
 
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TheRealCanadian said:
I wouldn't trust that. My I-140 approval notice stated no PD, and the receipt for my I-485 said that my priority date was the same as my I-485 receipt date. The only time I ever saw a proper accounting of my PD was at the time of my I-485 interview.
You make the huge assumption that USCIS checked and explicitly noticed that your case was an LC substitution case. I don't trust them enough to make that assumption.
That's an interesting link. As DOS is the Department which assigns priority dates for IVs, it's important, but everything I've read thus far indicates that the priority date is alien-based, not LC based.
Click to expand...

A link, :http://www.imminfo.com/Resources/IN...mos/SubLC1.html,posted by
Niceone2004 ,in the other thread.
A)If the memo is followed by CIS(if it is of current validity),it clearly says:
'C. Disposition of Substitution Requests

If the service center determines that the substituted alien meets the minimum requirements set forth in the initial labor certification application as of the date that it was filed with the state employment office and the I-140 petition is otherwise approvable, the I-140 petition shall be approved and processed like any other I-140 petition. The priority date shall be the date which the original labor certification application was filed with any office within the employment service system of the DOL. See 8 CFR 204.5(d).'.

B)The section 8CFR 204.5(d) link at CIS site:http://uscis.gov/lpBin/lpext.dll/in...mplates&fn=document-frame.htm#slb-8cfrsec2045.
Of course,it mentions:
'(e) Retention of section 203(b)(1), (2), or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.'.

But memo at A) quotes the CFR of B) and still memo at A) rules that:
For substitution Requests:The priority date shall be the date which the original
labor certification application was filed with any office.....
C)Explorer and some others who had 140 Substituted labors had confirmed proirity dates are of orginal labor filed.
D)DOS memo earlier cited tells the same.
From above,A), B),C),D),it seems,it is fair to draw , that substituted 140s will have original labor pririty dates.
Any more inputs /memos/postings of recent origin(CIS,DOL etc) to say otherwise?
 
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I don't care what "The Real Canadian" thinks.

I personally and from these forums have seen a lot of people who had a labor filing priority date when they used labor substitution.

USCIS may be wrong in 1 or 2 cases but cannot be wrong in so many cases.
by the way our cases are handled by so many different IIOs and not a single person. So all these IIOs cannot be wrong
 
Explorer19 said:
I don't care what "The Real Canadian" thinks.
Click to expand...

Nor should you. My suggestions and thoughts are worth every penny you paid for them, and everyone here should apply their own common sense and critical thinking skills.

All I'm doing is suggesting a contrary point of view, that priority dates in labor certification subtitution cases are alien-based, not petition based. There appears to be some documentation that supports the opposite view, but it is very old.

I personally and from these forums have seen a lot of people who had a labor filing priority date when they used labor substitution.
Click to expand...

I don't doubt that for a minute. But let me play Devil's advocate for a moment:

In a situation where priority dates are all current, how much pressure is there for USCIS to properly document priority dates at any time prior to ajudication? If LC-substitution cases are less than 5% of all EB (even lower as a percentage of all) cases and priority dates would affect a small minority of that subset (EB3 India/China), might it not be possible that USCIS just uses the same criteria for everything and doesn't care?

So all these IIOs cannot be wrong
Click to expand...

That's assuming they are actually trained properly. If the SOP says use the LC date in all EB-3/EB-2 cases, then of course things will be consistent.

Look, do I think I'm right? From what I've read, there's some good doubt in my mind. If you are an LC substitution case where arguing the earlier PD will make the difference, by all means argue it. All I'm suggesting is that there's another way this can be interpreted ("alien-based" priority dates, where the PD is attached to the alien, not the job) and you should keep that in mind.

And that you should care about.
 
what will PD be in this interesting scenario?

Gurus,


1) labor approved for self with never worked company C1,but have valid h1 visa GA SESA/TX DOL(PD1 ... 08/2001)..

2) Filed I140/485/VSC-- Oct 2004 with Labor Sub, Chicago SWA/DOL(PD2.. 08/2002) with present company C2..


In this scenario actual PD would be PD1 or PD2. ?





Thanks
KosmoKramer
 
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