The Department of State (DOS) Visa Bulletin for October 2005 indicates that visa numbers will retrogress for both Indian and Chinese nationals in all three employment based (EB) categories (i.e., EB-1, EB-2, and EB-3) as of October 1, 2005.  The Bulletin also indicates that EB-3 numbers will remain unavailable and retrogress significantly for all nationalities.  For more information on visa retrogression in general, please refer to our Visa Retrogression FAQ. 

This retrogression immediately impacts those individuals in the final stages of the permanent resident process (i.e., those seeking to file an I-485 adjustment of status (AOS) application, those who are waiting for an AOS application to be adjudicated, or those who are seeking to apply for an immigrant visa at a U.S. Consulate or Embassy based on an approved I-140 immigrant visa petition).  Retrogression has no impact on the processing of a labor certification application that is about to be filed or is pending with the Department of Labor.   Furthermore, the retrogression does not prohibit the filing of the I-140 immigrant visa petition, regardless of the EB preference category.

The EB-3 category includes individuals who have labor certifications filed on their behalf where the requirements were at least a Bachelor's degree ("professionals") or 2 years of experience ("skilled workers").  The EB-2 category primarily includes individuals who have labor certification applications filed on their behalf where the minimum requirements for the position were a Master's degree or a Bachelor's degree plus five years of progressive experience, but also includes national interest waiver (exceptional ability/advanced degree) cases and Schedule A Group II immigrant visa petitions. "Extraordinary ability" alien, "outstanding researcher" and "multinational managerial" petitions are all considered priority worker petitions and fall under the EB-1 category.

For labor certification-based petitions, the controlling factor is what requirements were listed on the labor certification supporting the employer's immigrant visa petition for EB-2 and EB-3 cases.  The sponsored individual's education or experience may be greater than that listed on the labor certification application, but does not determine whether a petition is eligible for the EB-2 or EB-3 categories.  The requirements on the labor certification represent the employer's minimum requirements for the position and these determine whether the case will fall into either the EB-3 or EB-2 preference category.  If the labor certification has already been filed and/or approved with EB-3 requirements, the case must be processed under the EB-3 quota.  A labor certification is not required for the EB-1 category or for the national interest waiver or Schedule A Group II EB-2 categories.

Again, as of October 1, 2005, the U.S. Citizenship and Immigration Services (USCIS) will not accept any new employment based I-485 AOS applications or adjudicate pending applications for Indian and Chinese nationals with priority dates later than those listed in the October 2005 Bulletin.  Further, USCIS will not accept any new EB-3 based I-485 AOS applications or adjudicate pending applications, regardless of nationality, unless the priority date is current.  The priority date is determined based on the date of filing the labor certification application, if one is required, or filing the immigrant visa petition, if a labor certification is not required.

Jackson & Hertogs encourages all Indian and Chinese nationals in the EB-1 and EB-2 categories who are eligible to file an I-485 application at this time to do so before September 30, 2005.  Such an application must be received by the USCIS no later than September 30, 2005, which means that applications must be filed by September 29, 2005. If the I-485 application is received by USCIS on or before September 29, 2005, the applicant is eligible to apply for both the Employment Authorization Document (EAD) and Advance Parole (AP) document while the I-485 remains pending. USCIS will also not be able to adjudicate pending EB-3 I-485 applications for any nationalities or any employment based I-485 application for Indian and Chinese nationals until the underlying priority dates becomes current. Please note that the adjudication process for these cases will continue, but the case cannot be approved unless the priority date is current. Similarly, DOS consular officers will be unable to approve immigrant applications for permanent residency at immigrant visa interviews until and unless the priority date is current on the date of the immigrant visa interview.

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