On December 9, 2004, the Department of State (DOS) released the January 2005 Visa Bulletin.  As expected, the priority date for employment-based third preference (EB3) category nationals of China, India and the Philippines will retrogress to January 1, 2002.  Only nationals of these three countries are affected at this time.  The EB3 category refers to immigrant visa petitions that require at least two years of experience or a Bachelor's degree as the minimum requirement for qualification.  The priority date is the date either the labor certification was originally filed with Department of Labor, or the date the I-140 was filed with U.S. Citizenship and Immigration Services (USCIS) for applications that do not require a labor certification. 

Beginning January 1, 2005, individuals from India, China and the Philippines with approved EB3 I-140s, but with priority dates later than January 1, 2002, will not be able to file for Adjustment of Status until their priority date becomes current.  Similarly, individuals from India, China and the Philippines with approved I-140s who wish to consular process their green cards will not be scheduled for a immigrant visa interview at a Consulate/Embassy until their priority date is current.  In addition, individuals with pending I-485 applications based on an approved I-140 will not have their permanent resident applications adjudicated unless their priority date is current.  This could lead to long delays on pending I-485 applications of individuals from India, China and the Philippines, as these applications will be frozen until their priority dates are current.  However, while their I-485 applications are pending, these individuals will continue to be eligible for advance parole and employment authorization.

It is important to remember that the applicant's country of birth, not country of citizenship, is used for the Visa Bulletin.  For example, many persons born in China and India immigrate to other countries, such as Canada, before coming to the U.S.  These individuals will be subject to the immigrant visa limits of their country of birth not their new country of citizenship.

While the Visa Bulletin restricts an individual's ability to proceed with the green card process, if the I-140 or underlying labor certification was filed before the individual started his/her sixth year of H-1B status, the individual will be eligible for additional years of H-1B status while waiting for the priority date to become current.  This will provide continuous employment authorization for H-1B visa holders who are unable to proceed immediately to adjustment or consular processing.

Another factor that must be evaluated in determining whether an individual can immigrate despite visa backlogs is the country of birth of the individual's spouse.  Applicants for immigrant visas may "cross-charge" against a spouse's country limits. This means that if a spouse was born in a country for which immigrant visa numbers are available and for which there are no backlogs, the applicant and his spouse may proceed with either consular processing or adjustment of status.  Jackson & Hertogs reviews all client files for these issues, and will make use of cross-charging if possible.

For individuals from India, China and the Philippines with pending or approved I-140s in the EB3 category who have not yet filed for adjustment of status, proceeding to adjustment prior to December 31, 2004 may be advisable depending on their priority date.  Clients should contact their attorney at Jackson & Hertogs as soon as possible to discuss this matter in detail.

Backlogs in other employment based categories could also occur during FY 2005.  For a detailed analysis of immigrant visa backlogs, please see our October 2004 Immigration Spotlight newsletter.

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