Immigration Law Advisory Bulletin
Visa Number Retrogression as of January 1, 2005
By Christopher
R. Helm, James
M. Mei, and Richard
M. Rawson
[Jan. 2005]
The U.S. Department of State (DOS), in its monthly
Visa Bulletin for January 2005, reports that a cut-off date of Jan.
1, 2002, will be imposed for the Employment-Based Third Preference
(EB-3) immigrant visa category, starting on Jan. 1, 2005. The employment-based
immigrant visa categories have not had a cut-off date for more than
three years. This development is called a retrogression (or “regression”)
of visa numbers and could have a substantial effect on the ability
of employers to sponsor certain types of professional and skilled
employees for green cards. The retrogression affects individuals
born in China, India and the Philippines whose priority date is
after the cut-off date.
The latest Visa Bulletin can be accessed on the DOS website at
http://travel.state.gov/visa/frvi_bulletincurrent.html.
Definitions
Visa numbers: The U.S. government makes
only a certain number of immigrant visas (green cards) available
each year and these are allocated among the various immigrant visa
categories and countries from which applicants seek to emigrate.
Retrogression: For the past few years,
the number of immigrants approved for employment-based immigrant
visas has been lower than the number of visas available, resulting
in no backlog in visa numbers. Recently, the DOS has seen far more
immigrants approved for employment-based immigrant visas and has
run out of visa numbers in certain categories, causing a temporary
backlog or "retrogression" of visa numbers.
EB-3: This visa category includes employment-based
immigrant visas for:
1) professionals with a bachelor's degree
2) skilled workers in positions requiring two or more years of
experience or training
3) unskilled workers
Chargeability: Immigrant visa numbers
are further apportioned among the various countries from which applicants
seek to emigrate. Each country has a limit and each approved applicant
is "charged" against his or her country's limit. Most
countries have fewer applicants than available visa numbers. However,
certain high-emigration countries often meet or exceed their chargeability
limit. These countries include China, India, Mexico, and the Philippines.
Priority Date: Immigrant visa numbers
are given out according to a "first come, first served"
policy. The date an applicant first begins the green card process
(often a Labor Certification Application filed with the U.S. Department
of Labor or an I-140 or I-130 Petition filed with the U.S. Citizenship
and Immigration Services) becomes that person's priority date, which
will determine the order in which that person will receive a visa
number and thus be further processed for an immigrant visa or adjusted
to immigrant status. When a retrogression occurs in visa numbers,
applicants will have to "wait in line" until their priority
date becomes current before they can be adjusted or receive an immigrant
visa.
Effects of Retrogression
A visa number retrogression means that EB-3 applicants from certain
high-emigration countries will not be able to apply for an immigrant
visa (by filing an I-485 or DS-230 application) until a visa number
becomes available for their priority date. According to the Visa
Bulletin for January 2005, nationals from the following countries
will be affected starting Jan. 1, 2005: China, India, and the Philippines.
Because of this, visa applicants without a current priority date
and outside the United States will have to wait longer to apply
for immigrant visas to come to the United States. Those inside the
United States will no longer receive the benefits of concurrently
filing I-140, I-485, I-765, and I-131 applications, and will have
to submit the I-140, wait for an approval, and then wait until their
priority date is current in order to submit the I-485, I-765, and
I-131 applications. Some applicants may run out of nonimmigrant
visa status during this time, forcing them to stop working or even
leave the country.
At this point, it is impossible to predict how long the delay could
be for these immigrants. Below is the DOS explanation:
"In recent months we have been experiencing very heavy applicant
demand in the Employment categories as the Citizenship and Immigration
Service has begun to address their backlog of cases. Section 201(a)(2)
of the Immigration and Nationality Act states that not more than
twenty-seven percent of the Employment annual limit may be used
in each of the first three quarters of a fiscal year. Based on the
current rate of demand it is likely that we will exceed twenty-seven
percent of annual limit during the first quarter of FY-2005.”
What Can You Do?
Employers should immediately begin considering the effect this
could have on their employees.
First, employers are advised to begin the green card process as
early as possible, in order to get the earliest possible priority
date for their vital employees. If you are considering sponsoring
an EB-3 employee from China, India, or the Philippines, it will
be best for them to apply without delay.
Second, an important DOS chargeability rule allows an applicant
to apply for an immigrant visa under the country of birth of his
spouse. Thus, an EB-3 applicant born in India whose spouse was born
in Canada can apply for an immigrant visa under the Canadian chargeability
limit for his spouse, which is not currently backlogged.
Third, some employees may qualify for other visa categories, such
as family-based categories or the Employment-Based Second Preference
(EB-2) category. The EB-2 category includes:
1) Professionals with an advanced degree
2) Aliens of exceptional ability
3) National Interest Waiver
Fourth, some employees may be eligible to switch to H-1B, to take
advantage of yearly extensions with a pending green card application.
Keep in mind the issues of the H-1B cap and the need to file the
labor certification before the fifth year.
Fifth, applicants should be prepared to file the I-140/I-485 as
soon as the labor certification is issued, by preparing the I-140/I-485
in advance. This will allow them to catch any windows of opportunity
that might open up.
Please feel free to contact the immigration professionals
at Davis Wright Tremaine for further information on this issue.
This
Immigration Law Advisory is a publication of the Employer Services
Department of Davis Wright Tremaine LLP. Our purpose in publishing
this Advisory is to inform our clients and friends of recent developments
in immigration law. It is not intended, nor should it be used, as
a substitute for specific legal advice as legal counsel may be given
only in response to inquiries regarding particular situations.
Copyright
© 2005, Davis Wright Tremaine LLP.
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