Dec 2005 Visa Bulletin : Forward Movement Evident
Posted Nov 11, 2005

The U.S. Department of State (DOS) released the December 2005 Visa Bulletin on November 10, 2005. The Visa Bulletin shows forward movement in the cutoff dates for most Employment Based (EB) categories. The most recent Visa Bulletin times can be found on MurthyDotCom. We at The Law Office of Sheela Murthy have outlined the progress seen in the December Visa Bulletin for the benefit of our readers. All comparisons are between the November 2005 Visa Bulletin and the December 2005 Visa Bulletin.

What the Movement Means

The forward movement of the cutoff dates essentially means that there are visa numbers available for a larger group of people. It is not possible to file or obtain approval of an Adjustment of Status (I-485) application or obtain an immigrant visa at a U.S. consulate without an available visa number. Therefore, forward movement in the cutoff dates means that a larger group of people is eligible to make final green card filings or potentially obtain approvals of existing filings. The priority dates remain significantly retrogressed in EB3 for persons from all countries, however, and in EB2 for nationals of China and India. Therefore, while the forward movement is a positive sign, most people will still have priority dates that are later than the new cutoff dates.

Employment-Based First Preference (EB1)

In the EB1 category, the cutoff dates for China have advanced by one year and six months. Therefore, persons chargeable to China who filed their Extraordinary Ability (EA), Outstanding Professor / Researcher (OPR), or Multinational Executive Transferee (MET) I-140 petitions prior to July 1, 2001, may finish the green card process. The date advanced by six months for Indian. Therefore, persons chargeable to India who filed their I-140 petitions in one of these categories prior to February 1, 2003, may also move forward in their green card processes. All other countries remain current in EB1 and, thus, are not suffering under the current retrogression situation.

Employment-Based Second Preference (EB2)

The EB2 category also showed movement for China and India. The cutoff date for China moved forward nine months. Persons who are beneficiaries of an EB2 labor certification or who filed a National Interest Waiver (NIW) I-140 petition prior to February 1, 2001, therefore, are eligible to move forward in their green card processes. The date advanced 8 months for India, to July 1, 2000. Indian nationals with EB2 labor certifications or NIWs with priority dates prior to July 1, 2000, therefore, may also finish the green card process. All other countries remain current, with no backlog in visa number availability.

Employment-Based Third Preference (EB3)

The movement in the EB3 category varied greatly between the countries. The cutoff date for China moved eight months, to January 1, 2001. The date moved ahead an entire year for India, so that persons with approved EB3 labor certifications for skilled workers, with priority dates prior to January 1, 1999, may move forward in the green card process. The date for Mexico, however, only moved one month, to February 1, 2001. For the remaining countries, the date only moved ahead half a month, so that persons who are beneficiaries of EB3 labor certification for skilled workers prior to March 15, 2001, may finish their green card processes.

Other Worker

The Other Worker dates, unfortunately, remain unchanged. They remain at October 1, 2000 for all countries.

When to File I-485

The December 2005 Visa Bulletin is not effective until December 1, 2005. Therefore, those who would benefit from the movement in dates in the December bulletin should not file their I-485 applications before December 1, 2005, or they will likely be rejected or denied. Those individuals, however, should use this time in November to gather the required documents and information for the forms so that their applications can be filed in early December.

Existing I-485s

Since the December 2005 Visa Bulletin is only effective as of December 1, 2005, people with pending I-485s that are eligible for approval due to the forward movement of the dates will still have to wait until at least December 1^st for a potential approval. Even eligible people should not count on a December approval. Any needed extensions of status, Employment Authorization and Advance Parole should still be filed.

Anticipated Future Progress in Dates

As we have indicated, some dates moved forward substantially. Anticipating significant jumps to be routine in the future for all categories, however, may be too optimistic. As long-time readers of MurthyDotCom and MurthyBulletin will recall, many cases were filed between January 2001 and April 2001, to meet the INA 245(i) deadline for persons who otherwise would not have been eligible to adjust status to permanent residence. A great many cases were filed especially at the end of April 2001, in an effort to beat the deadline. Thus, forward movement may continue, but is likely to slow or stall around the April 2001 date. In the EB1 category, it is possible that the dates will continue to improve because the EB1 category has not retrogressed to a date prior to April 2001. In the EB2 and EB3 categories, however, they have. It is unsurprising, therefore, that while the India EB3 dates that were set at 1998 progressed a year, the dates for Mexico and the remainder of the world, which were close to April 2001, did not experience the same level of movement. While it is possible that the dates not yet close to April 2001 may experience major movement again, it is unlikely that the dates close to April 2001 will move ahead substantially in the months to come unless Congress and the President enact a law to increase the number of green cards available in the employment-based categories.