According to the August 2005 Visa Bulletin, the State Department predicts that 2nd preference employment-based immigrants from India and China may start to see a retrogression in their numbers as soon as September 2005:

"Demand for numbers by CIS Offices for adjustment of status cases remains very high. As the end of the fiscal year approaches, it might be necessary to establish an Employment Second preference cut-off date for September to keep visa issuances within the annual numerical limits set by law. If required, such a cut-off date is likely to be limited to the China-mainland born and India chargeability areas."

Should there be a retrogression in the EB-2 category, only those individuals in the final stages of the permanent resident process will be immediately impacted, for example:

• those seeking to file an adjustment of status (AOS) application,
• those waiting for an AOS application to be adjudicated,
• those seeking to apply for an immigrant visa at a U.S. Consulate or Embassy based on an approved immigrant visa petition.

Retrogression has no impact on the processing of labor certifications about to be filed or currently pending with the Department of Labor. Furthermore, retrogression on the Visa Bulletin does not prohibit the filing of the immigrant visa petition (I-140) based on an approved labor certification, even if that immigrant visa petition will be filed under employment-based categories which are unavailable at the time of filing. The EB-2 category includes beneficiaries of labor certifications requiring at least a Master's degree or its equivalent, or a Bachelor's degree and five years of progressively responsible experience, or persons who have filed an I-140 petition under the National Interest Waiver ("NIW") classification. 

Jackson & Hertogs will continue to monitor the changes in priority dates and the Visa Bulletin, and will provide updates to clients as information becomes available.

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