Reminder : Priority Date Retrogression Expected
Posted Nov 05, 2004
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MurthyDotCom and MurthyBulletin readers recently were advised that priority dates will likely retrogress, or move backward, in both family and employment categories in 2005. The retrogression in employment-based categories could occur as early as January, according to the U.S. Department of State (DOS). The family retrogression is not expected until much later in the 2005 calendar year. More information is available on the topic of retrogression in our September 24, 2004 MurthyBulletin article, Priority Dates May Retrogress, available on MurthyDotCom. Since publication of that article we have received many questions on this topic and what it means in particular situations. Some questions and concerns are addressed here, with primary consideration given to employment-based cases, since retrogression of those cases is expected first.
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BASICS
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The Visa Bulletin priority date chart is the DOS's advisement as to whether or not there is an immigrant visa number available for any given case. Availability of an immigrant visa number is determined by the category of a case, the date it was first filed (priority date), and the beneficiary's country of origin. The most current DOS Visa Dates can be found on MurthyDotCom. Other details accompany the Visa Bulletin on the Department of State WebSite. In order to file an I-485, Application for Adjustment of Status, the priority date must be current, meaning that a visa number must be available. Once filed, in order for an I-485 to be approved, the priority date must be current. The same rule applies when obtaining immigrant visas at the consulates abroad. In order for the immigrant visa to be issued, there must be an immigrant visa number available. Priority dates are current for all cases with priority dates BEFORE the date stated in the Visa Bulletin.
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CASE SITUATIONS
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I-485 Filed
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If one has an employment-based I-485 filed already, the first hurdle has been overcome. The employment-based priority dates are all current at this time, so they filed at a time when the dates were current. These cases will go through the ordinary procedures until the priority dates retrogress. Once the dates retrogress the impact on a pending case will depend upon whether the dates retrogress to a point earlier than the priority date of that case. For example, a case with a priority date of January 1, 2002 will not be impacted if the priority dates retrogress to January 1, 2003 in the relevant category. In this example, there are sufficient visa numbers available for all cases filed before January 1, 2003. Thus, our January 1, 2002 illustration case can proceed normally.
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However, using the same example, if the priority dates retrogress to a time earlier than January 1, 2002, it will not be possible for the case to be approved until the priority dates move forward again. In this situation the I-485 will remain in pending status until the priority date reaches January 2, 2002. At that time, the case will be eligible for approval. Of course, whether a particular case is acted upon at any given time depends upon the processing times at the USCIS. While awaiting case action one is eligible for Employment Authorization (EAD) and Advance Parole.
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Labor Certification Pending
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If one is the beneficiary of a labor certification pending, this issue simply needs to be monitored. The I-140/I-485 cannot be filed until the labor certification is approved. The only action that the beneficiary can take, therefore, is to make sure any documents that might be needed for the I-485 are readily available. These include foreign documents such as birth certificates and marriage certificates. Since it can take time to get these documents, it is generally best to work towards obtaining them while awaiting the labor certification. The employer should take this time to ensure all financial documents needed for the I-140 are in order. Tax returns under extensions of time to file could be prepared, as they may be needed for the I-140 as proof of ability to pay the offered wage. Plans should be made by the employer and employee to continue extending the beneficiary's H-1 or other underlying nonimmigrant status while the labor certification is pending.
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Labor Certification Approved
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These are the persons who really must take action. They must decide if they wish to proceed via adjustment of status or consular processing. If they select consular processing, they run the risk that the priority dates will retrogress before their I-140s are approved and the consular interviews completed. If this occurs, they will have to wait out the process and maintain lawful nonimmigrant status if they wish to remain in the United States. If such persons select adjustment of status, they need to move quickly so that their cases can be filed before the priority dates retrogress. If the dates retrogress before their I-485s can be filed, the employers will be able to file the I-140s. The I-140s, in this situation, should be filed rather than waiting for priority dates to become current. If the I-485s cannot be filed immediately, then the matter should be watched closely so that the I-485 can be filed as soon as the priority dates do become current.
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PITFALLS REMINDER
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The Visa Bulletin is generally published around the middle of the preceding month. That is to say, the December bulletin will be issued in mid November, and so forth. A case that is appropriate to file based upon the December bulletin must wait until December. Also, the Visa Bulletin reflects available visa numbers for cases with priority dates before the listed dates. Cases with exactly the same priority date as the date listed must wait.
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We at The Law Office of Sheela Murthy, P.C. will continue to monitor this issue for our MurthyDotCom and MurthyBulletin readers. We note that the November Visa Bulletin did not contain any new information on this topic. We should receive at least a small amount of advance warning as to any retrogression since, as explained, the Visa Bulletins are issued during the previous month.