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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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