Retrogression - Maybe Some of us need not worry

Z

ziv711

Registered Users (C)
OK, I read many of the posts and threads regarding retrogression, and I am not sure I comlpetely agree with what many are saying (or maybe it's just wishful thinking...)

I believe immigrant visa numbers are issued not on 485 approval, but after the i140 is approved. This is from the immigration law:

(e) Order of Consideration. -


(1) Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General (or in the case of special immigrants under section 101(a)(27)(D), with the Secretary of State) as provided in section 204(a).


Note that section (b) referred to above is employment based. Doesn't this really mean that who ever had their i140 approved for a while probably already has a visa number available, and approvals on many of these cases will continue?
(I know what's been said here before - but didn't someone miss these clause?)

That would also explain why they won't accept new 485 applications, and it makes sense also because if they ran out of visa numebrs, why would they approve anyone through the end of June? If the numbers are out they're out and can't approve anyone.
 
ziv711 said:
Doesn't this really mean that who ever had their i140 approved for a while probably already has a visa number available, and approvals on many of these cases will continue?
(I know what's been said here before - but didn't someone miss these clause?)

That would also explain why they won't accept new 485 applications, and it makes sense also because if they ran out of visa numebrs, why would they approve anyone through the end of June? If the numbers are out they're out and can't approve anyone.
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i dont understand this, if the above is true , then how come they will continue to accept 140 applications even after visa numbers are unavailable.
Secondly, whats the signifance of A# assigned when u file 485. The CSR reps always refer to that number for pulling any 485 related info
 
I was also under the impression that the I-140 is even referred to as an immigrant visa petition. You would think that if the immigrant visa petition is approved, you would get an immigrant visa ;)
 
josamdee said:
i dont understand this, if the above is true , then how come they will continue to accept 140 applications even after visa numbers are unavailable.
Secondly, whats the signifance of A# assigned when u file 485. The CSR reps always refer to that number for pulling any 485 related info
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First, the A# is not the visa number, to the best of my knowledge, and is unrelated to it.

Second, according to my theory, after the i140 is approved, an application for a visa number is made through the department of state. I believe that with each i140 approval a notice is sent to the Department of State and they allocate a number and forward it either back to USCIS or to a consular office. Once a visa number is available, the applicant may apply for adjustment.

The situation now as I see it, is that whoever has their i 140 approved or will be approved before the DOS run out of visas, will have a visa number available, and the USCIS will be able to proceed with the processing, and approvals, of such applications.
 
I140

This is now throwing up a lot of questions when we bring the I-140 issue. So are we saying visa number allocation depends on I-140 approvals?
If that is the case then they would have stopped filing I-140 rather than stopping I-485.

I believe when you file 485 that time they see if a visa number is available. They have visa number till June 30 2005 whoever filing. That time visa number is allocated to the person filing 485.
 
You guys have it all wrong.

First, an immigrant visa petition (I-130/140/360) does not allocate an immigrant visa to you, and the I-140 approval notice clearly states that. It merely gives you the ability to ask for an immigrant visa, by validating that you qualify. The priority dates for your category do NOT have to be current to file the petition. In fact, for FB1, FB2, FB3 and FB4 the priority dates are *NEVER* current when the I-130 is filed. In 99% of the cases, the priority dates are not current when the I-130 is approved.

Once your immigrant visa petition is approved, you then have to go through checks to ensure that you are admissible to the United States as an immigrant. That's the whole Packet III and Packet IV business for CP, or the I-485 when adjusting status.

Only at the time of the interview or the I-485 approval is the immigrant visa given out. There is absolutely no point in doing so before the final step, since you may be disqualified from admittance as an immigrant by reason of criminal or health inadmissibility, or the demise of your sponsor.
 
I am not convinced.

I am NOT saying that once the i140 is approved gives you a visa number. I believe visa numbers are allocated when the 485 application is received by USCIS. If the reverse was true, why wouldn't they continue to accept 485 applications if visa number are not available? The answer - because the visa is allocated when the application is received.

I also looked through the INA and CFR to look for answers on this. All references for visa allocation have to do with the application date, not with adjudication date.

In addition, I saw some other posts here where immigration reps said the same things to people who called, and that some attorneys believe this as well.

I guess we'll see if there are any EB3 approvals after 7/1. I believe we'll see many of them.
 
And to specifically address some of your points:

TheRealCanadian said:
You guys have it all wrong.


Only at the time of the interview or the I-485 approval is the immigrant visa given out.
---- Yes, but an immigrant visa NUMBER has been allocated for the applicant when he applied.
There is absolutely no point in doing so before the final step, since you may be disqualified from admittance as an immigrant by reason of criminal or health inadmissibility, or the demise of your sponsor.
---- According to 22 CFR (Dept. of State regulation) if a person is found inadmissable the visa number is recaptured and returned to the Department of State (and by the way the fact that there's no point to something doesn't mean it can't happen, especially with USCIS... :rolleyes:
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ziv711 said:
I believe visa numbers are allocated when the 485 application is received by USCIS. If the reverse was true, why wouldn't they continue to accept 485 applications if visa number are not available? The answer - because the visa is allocated when the application is received.
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No, the answer is because every petition must be "approvable when filed". An I-485 filed without an available visa number does not meet that criteria, which is why it is not allowed.

According to your logic, when the EB3 dates for India/China/Philipines retrogressed from current to Janaury 1st, 2002 that would not make any difference for folks with pending I-485s, since their visa numbers would have already been allocated. The truth is different - almost no one subjected to the Priority Date retrogression has been approved since the dates went backward. There's a reason for this.

I've physically been in the room when an I-485 was ajudicated and approved. I can tell you that the last thing the ajudicating officer does is connect to a State Department web site to get and allocate the visa number.

I also looked through the INA and CFR to look for answers on this. All references for visa allocation have to do with the application date, not with adjudication date.
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You're not looking in the right place. If you search for the standard operating procedures for USCIS in these forums (it's a big PDF) you'll see the process used to ajudicate the I-485 petition. There's an entire section on what to do if the priority date is not current - and it explicitly says NOT to approve the petition.

In addition, I saw some other posts here where immigration reps said the same things to people who called, and that some attorneys believe this as well.
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Immigration reps and immigration attorneys are known to not know what on earth they are talking about.

I guess we'll see if there are any EB3 approvals after 7/1. I believe we'll see many of them.
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I know we won't. :)
 
OK. I read the instructions (operating procedures...). I am now convinced. 5 more working days. I am praying...
 
chandrajp said:
Can one get EAD/AP approved if they apply (provided their priority date is before 1 Jun 2002) before July 1st?
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So long as the I-485 was properly filed, then EADs and APs can always been filed and approved, even if no visas are available.
 
So going by that logic, at the time of applying 485 (if PD is current at that time), a visa number is not taken out of the quota for that country? As long as that is true, I can digest this.
 
gb04 said:
So going by that logic, at the time of applying 485 (if PD is current at that time), a visa number is not taken out of the quota for that country? As long as that is true, I can digest this.
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The visa number is never assigned when the I-485 is filed, since there's no guarantee that the alien will actually qualify for the visa. It's the same logic as with H-1Bs, the number is taken out of the quota when the H-1 is approved, not when it's applied for.
 
Quest to THE REAL CANADIAN.

I have a difficult/Different situation.
When the visas are Unavailable will the USCIS process the I-140 applications which are filed earlier.
I have attended AOS interview and still I-140 is not approved.
details in signature.

lx kumar
 
Real Canadian and others,

The link to the USCIS procedure file was very helpful, thanks! However, that mentioned India, China, and Philipines specifically. Is the retrogession this time going to affect all countries? Have any of you found any such bulletins that we can view? Thanks a lot. Please post if you have links.
 
Shaf said:
However, that mentioned India, China, and Philipines specifically. Is the retrogession this time going to affect all countries? Have any of you found any such bulletins that we can view? Thanks a lot. Please post if you have links.
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The EB3 numbers are marked "unavailable" after July 1st, which basically means that all countries, all priority dates, are retrogressed.
 
RealCandian ,
Got a RFE on 485 on the very last day 06/30 ...
Does this mean even if I respond now ,It wont be approved until 1st Oct ?

Just wondering there must be visa number available that they opened my file(what if there was no RFE and direct aapproval) ...Since it was the last day,unlikely that they opened a brand new case after that and allocated the visa number to the other guy :mad:

So whats the fate of the cases which were opened and RFE was sent....
 
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