For individuals born in India, EB-2 will move from January 1, 2003 to "unavailable" on August 1, 2006, due to high demand in that category. This means that no EB-2 adjustment of status applications will be accepted by USCIS after July 31, 2006, regardless of priority date. This also means that all Indian nationals who presently have an EB-2 adjustment of status application pending at USCIS will see their cases put on hold while they wait for their priority date to become current and available. EB-3 for Indian nationals also retrogressed, moving from April 15, 2001 to April 1, 2001.

It is important to note that "nationality" is not the same as citizenship. Generally, DOS looks at the country of birth in determining whether a person is a national of a given country. As a result, persons who become citizens of other countries (i.e., Indians who become Canadian citizens) are still considered nationals of their birth country for immigrant visa purposes.

A retrogression in the EB-2 category immediately impacts only those individuals in the final stages of the permanent resident process (i.e., those seeking to file adjustment of status (AOS) application, those waiting for an AOS application to be adjudicated, or 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 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 immigrant visa petition (I-140) based on an approved labor certification application, even if that immigrant visa petition will be filed under the EB-2 category.
The EB-2 category includes individuals who have labor certifications filed on their behalf where the requirements were at least a Master's degree or a Bachelor's degree plus five years of progressive post-baccalaureate experience. National Interest Waiver cases also fall in the EB-2 category.

Again, beginning August 1, 2006, the U.S. Citizenship and Immigration Services (USCIS) will not accept any new EB-2 category I-485 adjustment of status applications for nationals of India, regardless of the priority date. Jackson & Hertogs encourages all individuals in the EB-2 category who are eligible to file an I-485 application to do so before July 31, 2006. Such an application must be received by USCIS no later than July 31, 2006, which means that applications must be filed by July 28, 2006. If the I-485 application is received by USCIS on or before July 31, 2006, the applicant is eligible to apply for both the Employment Authorization Document (EAD) and Advance Parole (AP) while the I-485 remains pending. USCIS will also not be able to adjudicate any pending I-485 in the EB-2 category for Indian nationals until the underlying priority date becomes current. Similarly, DOS consular officers will be unable to approve immigrant applications for permanent residency until the priority date becomes current.

There were no changes in any other employment-based category on the August Visa Bulletin. However, DOS advises that "for September there is increased possibility of additional retrogressions of cut-off dates," and that China EB-2 and EB-3 and India EB-1 "could experience retrogressions" in that month. While this does not mean that these categories will retrogress or become unavailable in September 2006, the DOS prediction of this possibility suggests it is highly likely.

For more information on the Visa Bulletin and country quota movements, including information about movement in the Family-Based Quotas, please see our DOS Visa Bulletin and Quota Movement page (http://www.jackson-hertogs.com/quota/quota.shtml) which includes detailed charts of quota movement for the past decade.

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