The Department of State has announced, in the October Visa Bulletin, that employment-based immigrant visa numbers will start to backlog in all employment-based categories for applicants born in China and India starting October 1, 2005. All other countries in EB-1 and EB-2 are not backlogged for October.
EB-1 (Outstanding Researcher/Professor; no Labor Cert):
* China - January 1, 2000
* India - August 1, 2002
EB-2 (Advanced Degree Professional; Labor Cert):
* China - May 1, 2000
* India - November 1, 1999
EB-3 (Skilled Workers/Professionals; Labor Cert):
* China - May 1, 2000
* India - Jan uary 1, 1998
* Mexico : Jan uary 1, 2001
* Philippines : March 1, 2001
* All other countries: March 1, 2001
What Does This Mean?
Starting October 1, 2005, it means that if your priority date is before the date listed for your EB category and you have an approved I-140 petition, you may file an I-485 application, or be eligible for an immigrant visa if you are consular processing instead of filing an I-485 application. If your priority date is on or after the date listed, you cannot file your I-485 or get an immigrant visa at a consulate at this time. You need to maintain your current immigration status to remain in the U.S.
What Is a Priority Date?
Your priority date is the date on which your Labor Certification was received by the Dept. of Labor or, if you did not have to file a Labor Certification, the date your I-140 petition was received by Immigration.
I Was Born in China/India, but I Am a Citizen of Another Country Now
Visa numbers are based on your country of birth, regardless of your current citizenship. However, if your spouse was born in another country that is not subject to the backlog at this time, you will be able to "cross-charge" your I-485 application to your spouse's country of birth (this is known as "alternate chargeability").
My I-485 is Already Pending with Immigration, What Now?
If you already have a pending I-485 application with Immigration, you will c ontinue to be able to apply for and/or to renew your work and travel permits while the backlog continues.
My Labor Certification Is Still Pending, What Now?
Your priority date determines when you will be able to file your I-485, so if your Labor Certification has been pending a long time, you may be able to file your I-140 and I-485 at the time it is approved, depending on what the backlog date is for your country at that time. Also see next question below.
What about My H-1B Status; My 6 Years Are Almost Reached?
If your Labor Certification has been pending for at least 365 days, we will continue to be able to extend your H-1B status for one year at a time beyond the normal 6-year maximum in H-1B status. Once your I-140 has been approved, and if your country is still backlogged and you cannot file your I-485; we can extend your H-1B status for up to 3 years. It is still possible to file I-140 immigrant visa petition claiming eligibility for any of these categories; doing so will establish your Priority Date. However, you cannot obtain Employment Authorization or Advance Parole travel uthorization on the basis of an I-140 filing alone. If the I-140 is approved, you can proceed with an I-485 or immigrant visa interview only when your Priority Date is reached on a future Visa Bulletin. There is clearly the potential for a lengthy delay before that time comes.
Will These Backlog Dates Change?
Yes, they will eventually change. It is also possible that they may retrogress further. To stay informed about the dates, you may wish to subscribe to the monthly Visa Bulletin published by the State Department: http://travel.state.gov/visa/frvi/bulletin/bulletin_2631.html
This information provided to you as a courtesy of the Law Offices of Richard M. Costa and the Office of International Affairs at the University of Tennessee Health Science Center.
If you have questions or would like to discuss your visa arrangements, please contact Beth Andrews at x2203.
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