What the Immigrant Visa Cut-Off Date Retrogression in the Employment-Based Categories Means in Practice, and How Employers and their Employees Should React to It As we reported in our September 14, 2005, update, the United States Department of State (DOS) has released its October 2005 Visa Bulletin (the Bulletin), the first of the agency’s 2006 fiscal year. This Bulletin provides critically important information concerning the timelines involved in obtaining employment-based permanent residence in the United States, and announces a severe lengthening of these timelines for certain foreign nationals. More specifically, the Bulletin sets out a new series of “priority date” cut-off dates that determine a foreign national’s ability to file an adjustment of status (AOS) or immigrant visa application. The new cut-off dates will come as a considerable shock to employers and foreign national employees who have become accustomed over the past few years to seeing no cut-off dates for any employmentbased category, regardless of the nationality of the employee concerned. Why Did This Retrogression Occur? As a result of the high volume of foreign nationals seeking permanent residence compared to the availability of immigrant visas, the DOS has imposed significant waiting periods on such foreign nationals before they become eligible for permanent residence. Since the DOS can only issue a maximum of 140,000 immigrant visas in all five employment-based preference categories per fiscal year, with a percountry preference limit of 7% of the total, and the demand for these visas exceeds the supply, the DOS has put in place a procedure to allocate visas under a system which grants preference to the earliest filed green card applications. The length of the waiting period involved will be determined by the individual’s priority date. A priority date is set on the date on which the foreign national’s alien employment certification (AEC) application is filed, or, if the foreign national is seeking permanent residence through a channel that does not require an AEC, on the date on which the foreign national’s I-140 immigrant petition is filed. The fact that, for the past three years, there were no cut-off dates for employment-based green card applicants from any country in any category was the result, quite simply, of the USCIS failing to process enough green card applications to threaten the available supply. As a result, not all of the available immigrant visas were used each year. The return of severe quota backlogs is the result of the efforts of the USCIS to reduce its inventory of pending green card applications. As USCIS has adjudicated these long-pending applications, immigrant visa numbers have become rapidly depleted. How Does the Cut-Off System Work? In order to file an AOS application with the USCIS in the United States or an immigrant visa application with a U.S. consulate overseas, the foreign national’s priority date must be before the cut-off date specified in the Bulletin for his or her country of origin and preference category. The cut-off date system does not impose a prohibition on the filing of an I-140 immigrant petition, or upon the approval of such a petition. It is only the filing and approval of an AOS or immigrant visa application that is not permitted until the foreign national’s priority date falls before the cut-off date specified by the DOS. Such cut-off dates are reviewed every month, and may move forward or back, or remain static each month in the coming months. You should not expect the cut-off dates to move forward every month. The DOS has indicated that it does not expect significant forward movement in these cut-off
dates over the course of the 2006 fiscal year. The DOS releases priority date cut-offs approximately two weeks before they are scheduled to take effect, which will always be the first day of the month. You may hear comments about movements in priority dates, such as “priority dates have retrogressed this month.” Comments such as these reveal an unfamiliarity with the basics of the priority date cut-off system. Priority dates do not move; it is only the cut-off dates that progress or retrogress. The Green Card as Sandwich The delicatessen analogy works well to illustrate how the system works. A customer goes to a deli because she wants a sandwich. When she arrives at the deli, she is given a ticket with a number on it and waits in line. When her number is called, she goes to the counter and orders a sandwich. The deli has a limited supply of bread and bologna, and cannot produce sandwiches for all of its customers at the same time; it will therefore prioritize its sandwich production according to a first come, first served process. For the past few years, there has been no number required to order a sandwich, and the deli has been taking orders as soon as a customer walks through the door. The deli’s workers have not, however, been making the sandwiches, but have been sitting around talking about sports. The deli’s management has ordered them to quit loafing, and the workers have now begun making the sandwiches and giving them to customers. The problem is that they have been making so many sandwiches that the bread and bologna supply is in danger of running out, and the ticket system has to be restored. What Does the October 1 Bulletin Say? The highlights of the Bulletin are set out below. Please note that the country to which an individual will be charged for cut-off date purposes will generally be the country of birth, not the country of citizenship. For example, a person born in China who subsequently moves to Canada and becomes a Canadian citizen will continue to be charged to China. The cut-off date for EB-3 nationals of all countries other than India, China, Mexico and the Philippines has retrogressed to March 1, 2001. Perhaps the most significant announcement in the Bulletin is the fact that a cut-off date has, for the first time in recent memory, been imposed upon nationals of countries other than India, China, Mexico, and The Philippines who are in the Third Preference Skilled Worker, Professional, or Other Worker (EB-3) category (broadly comprising those persons whose AEC applications do not require a Master’s or higher degree or a Bachelor’s degree plus at least five years of progressive experience). This means that such persons will not be able to file AOS or immigrant visa applications if their priority dates are on or after the cut-off date of March 1, 2001. Thus, an Australian national with an AEC application that was filed on June 1, 2002, will not be able to file an AOS application until the cut-off date progresses to at least June 2, 2002. The cut-off dates for EB-3 nationals of India, China, Mexico and the Philippines have retrogressed further. As noted in the Bulletin, the cut-off dates for nationals of India, China, Mexico, and the Philippines in the EB-3 category have moved back to January 1, 1998, May 1, 2000, January 1, 2001, and March 1, 2001, respectively. As noted above, such foreign nationals will not be able to file AOS or immigrant visa applications until the relevant cut-off date moves to before their priority date. For October, 2005, the relevant cut-off dates for the EB-3 category are the following: China: May 1, 2000
India: Mexico: Philippines: Rest of the World:
January 1, 1998 January 1, 2001 March 1, 2001 March 1, 2001
It should be noted, that, since July 1, 2005, foreign nationals in the EB-3 category from any country have been unable to file AOS or immigrant visa applications, regardless of their priority dates, because the worldwide quota for the EB-3 category was exhausted as of this date. On October 1, 2005, foreign nationals in the EB-3 category may once again file AOS or immigrant visa applications, provided their priority dates are before the new cut-off dates specified by the DOS. There is no cut-off date for EB-2 nationals of all countries other than India and China. The Bulletin notes that there is no cut-off date for nationals of countries other than India and China who are in the Second Preference Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability (EB-2) category (broadly comprising those persons whose AEC applications require a Master’s or higher degree or a Bachelor’s degree plus at least five years of progressive experience). Put another way, all priority dates for nationals of countries other than these in the EB-2 category are “current.” This means that such nationals are able to file AOS or immigrant visa applications immediately, and need not wait for forward movement in cut-off dates. There is of course no guarantee that priority dates for such individuals will continue to be current; this situation will be revisited each month. There are now cut-off dates for EB-2 nationals of India and China. The Bulletin also notes that the cut-off dates for nationals of India and China in the EB-2 category have moved back to November 1, 1999, and May 1, 2000, respectively. As noted above, such foreign nationals will not be able to file AOS or immigrant visa applications until the relevant cut-off date moves to a date after their priority date. Previously, there were no cut-off dates for such persons, and all priority dates for such persons were current. For October, 2005, the relevant cut-off dates for Indian and Chinese nationals in the EB-2 category are the following: China: India: May 1, 2000 November 1, 1999
There is no cut-off date for EB-1 nationals of all countries other than India and China.
The Bulletin notes that there is no cut-off date for nationals of countries other than India and China who are in the EB-1 category. Foreign nationals in the EB-1 category are those for whom an Alien of Extraordinary Ability petition, Outstanding Professor or Researcher petition, or Multinational Executive or Manager petition have been filed. All priority dates for nationals of countries other than these in the EB-1 category are current This means that such nationals are able to file AOS or immigrant visa applications immediately, and need not wait for forward movement in cut-off dates. Again, there is no guarantee that priority dates for such individuals will continue to be current; this situation will be revisited each month. There are now cut-off dates for EB-1 nationals of India and China. The Bulletin also imposes cut-off dates for nationals of India and China in the EB-1 category: August 1, 2002, and January 1, 2000, respectively. As noted above, after October 1, such foreign nationals will not be able to file AOS or immigrant visa applications until the relevant cut-off date moves to before their priority date. Previously, all priority dates for such persons were current.
For October, 2005, the relevant cut-off dates for Indian and Chinese nationals in the EB-1 category are the following: China: India: January 1, 2000 August 1, 2002
What Issues Does This Retrogression Present for Us? The following are the issues that employers and employees need to bear in mind in assessing the impact of the retrogression in the cut-off dates for AOS and immigrant visa applications upon their foreign national employees. When Can I Expect A Priority Date to Become Current? Employers can expect to be approached by concerned employees seeking reassurance that their priority date will become current by a certain date in the future. Employees will try to predict when their priority date will become current based on their analysis of month-to-month movement in cut-off dates (employers can expect to hear comments such as “Priority dates have advanced six months since November. Therefore, I can expect my priority date to become current by March, so we should prepare my green card application now.”). Unfortunately, nobody can accurately predict when a particular priority date will become current. Priority date cut-offs are highly elastic; they can either move forward, retrogress further, or remain the same for significant periods of time. Is There Anything We Can Do Before October 1? It is extremely important to identify individuals who are currently eligible to file their green card applications, but will be ineligible to file on October 1, 2005. These applications must be received by USCIS no later than September 30, 2005 to avoid being caught by the retrogression. The cut-off dates specified in the most recent Bulletin will not become effective until October 1, 2005. It is thus recommended that employers file immigrant petitions and concurrent AOS applications for their eligible Indian or Chinese employees in the EB-1 or EB-2 categories who have not yet started the green card process or whose cut-off dates will retrogress on October 1, 2005. If an immigrant petition has been approved or is still pending, an AOS application should be filed as soon as possible. Please note that no AOS or immigrant visa application for an individual in the EB-3 category from any country may be filed at the moment, since, as indicated above, the worldwide quota for this category was exhausted on July 1 of this year. If an AOS application is filed before the relevant cut-off date becomes effective on October 1, 2005, the USCIS will accept the application, and the employee will become an adjustment of status applicant. Although the AOS application will not be approved until the employee’s cut-off date moves to a date after the priority date, under existing agency policy, he or she will remain eligible for all the benefits accorded to AOS applicants, including employment authorization for dependents and adjustment portability to another position or employer. What About AOS Applications That Are Still Pending? Under current policy, which is subject to change, the USCIS will hold previously filed AOS applications in abeyance for individuals whose priority date was current when the application was filed, but has subsequently retrogressed. Once the priority date becomes current again, the USCIS will then be able to adjudicate the application. In the mean time, the AOS applicant can continue to receive all the benefits
granted to such applicants, including employment authorization for dependents and adjustment portability eligibility. Will Our H-1B Employees Who are Caught by this Retrogression Have to Leave the United States? Although nonimmigrants in H-1B status are generally limited to a period of stay in the United States that does not exceed six years, there are two legal protections available to ensure that persons who have started the green card process but have not yet completed it when the six-year limit is reached can remain in this country. Under section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21), individuals with approved I-140 petitions (provided that the underlying AEC application has not been used to support another individual’s immigrant visa petition) who are subject to country visa limitations are eligible for indefinite H-1B extensions in increments of three years until adjudication of their permanent resident status. Please note that the I-140 petition must be approved for this section to apply. Section 106(a) of the AC21 allows H-1B nonimmigrants with pending AEC applications or I-140 petitions filed more than one year before their sixth-year anniversaries of H-1B stay to receive indefinite H-1B extensions in one year increments. Such extensions can be received for as long as it takes for the green card process to be completed. If We’re Not Going to Lose the Employee, What’s The Problem? The inability to file an AOS or immigrant visa application as a result of a given cut-off date works to the disadvantage of the employee more than the employer. Although the employer can continue to employ the employee who is waiting for his or her priority date to become current under the provisions outlined above for as long as it takes for the green card process to be completed. An employee who has not filed an AOS application and is terminated by an employer will not, however, be able to use the lifeline afforded by the adjustment portability provision to join another employer and may, even if he or she finds another employer willing to file an H-1B petition, have to leave the United States. Are There Any Possible Remedies to this Situation? The following are possible measures available to counteract the negative effect of this retrogression in cut-off dates. Cross-Chargeability If a national of a country with very early cut-off dates has a spouse who was born in a country with later cut-off dates (or no cut-off dates), then AOS applications can be filed simultaneously for both individuals under the principle of “Cross-Chargeability," which would charge both visa numbers against the yearly quota of the spouse’s country of birth. Thus, an Indian national in the EB-2 category with a priority date of June 1, 2004, who is married to a national of Bangladesh would be able to file an AOS application after October 1, 2005, even though his priority date is not current, because his application could be charged against Bangladesh, whose nationals in the EB-2 category have no cut-off dates at present. An individual may also be charged to his or her parents’ country of chargeability if the parents were residing only temporarily in the individual’s country of birth on the date of his or her birth. Retention of Priority Date Current USCIS regulations allow an individual for whom an I-140 immigrant petition has been approved to retain the priority date granted to that petition for any subsequently filed immigrant petition, as long as the
earlier petition has not been denied, revoked, or withdrawn. Please note, however, that a priority date granted to one individual’s green card application cannot be transferred to another individual. Individuals in the process of filing new PERM AEC application can also retain an earlier priority date accorded to a pending traditional or Reduction in Recruitment AEC application, as long as the new PERM application is for an “identical” job opportunity. We advise you to contact your immigration counsel before attempting to take advantage of these possible remedies. What Does the Future Hold? It is unrealistic to expect that we will return to a situation where there are no cut-off dates for nationals of any country under any preference category. In fact, severe as the backlogs currently appear, it is entirely possible that these backlogs will worsen in the future, and there is even the possibility that cut-off dates will be imposed for nationals of countries other than the traditionally oversubscribed countries of India, China, Mexico, and the Philippines. It is also likely that the EB-3 category will again become unavailable for all persons later in the year. Employers and employees will need to take account of these backlogs in their long-term planning and should take measures to mitigate their effects. Please contact our office if you have any questions about the priority date retrogression and its implications for your foreign national employees.
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