September 16, 2004 - The State Department today announced that it expects a backlog to develop in the employment-based third preference category for immigrant visas (i.e., green cards) beginning as early as January 2005; backlogs in other employment based categories could also occur during FY 2005. The following announcements are included in the October 2004 Visa Bulletin:

During the past two years, the visa allocation system compensated for the reduction in CIS visa number demand by making very rapid advances in the visa cut-off dates. As the cut-off dates advanced, tens of thousands of applicants became eligible to file for adjustment of status at CIS offices. Heavy demand was expected as CIS began to address their backlog and finalize action on such cases. The Visa Office has been alerting interested parties to this possibility over the past two years, and this is exactly what has recently begun to happen.

FAMILY: As CIS demand for visa numbers continues to increase, little if any forward movement of cut-off dates is expected during FY-2005, and the potential for retrogressions in certain categories cannot be ruled out. While retrogression of certain Family cut-off dates is not likely in the immediate future, it cannot be ruled out late in the fiscal year. This is because the CIS backlog is likely to include large numbers of applicants in all categories with priority dates well before the current cut-off dates.

EMPLOYMENT: The increasing CIS use of numbers is likely to require the establishment of cut-off dates in one or more categories during FY-2005. Such action is expected in the Employment Third preference category as early as January.

BAL Comment: Prior to 2001, backlogs existed in the employment based second and third preference categories due to per country limits, and it now appears that the backlogs could again occur, beginning as early as January 2005 for the EB3 category. This means that eligibility to file an I-485 application for Adjustment of Status, and the rate at which pending applications in the affected categories would be approved and issued, would be restricted according to the State Department's priority date system.

The priority date system directly impacts employment based green card applicants in the following ways:

1. Individuals who have not yet filed their I-485 application for adjustment of status will not be eligible to file that application until their priority date is current (i.e., the priority date is on or before the cutoff date published monthly by the State Department in the Visa Bulletin);
   
2. Individuals who have filed their I-485 application for adjustment of status will not have their green cards approved until their priority date is current. However, these adjustment of status applications will continue to be considered to be pending for the purpose of applying for employment authorization documents and advance parole documents;
   
3. Individuals with approved I-140 petitions who apply for their immigrant visa through a US consulate in their home country must have a current priority date at the time the immigrant visa application is filed and at the time the application is approved by the consulate.

Each immigrant visa petition has a priority date associated with it (e.g., the date the original application for labor certification was filed, or the date the I-140 petition was filed if no labor certification was required in the category). The State Department monitors on a monthly basis the number of immigrant visas or green cards that are issued in each category and compares this number to the total available for that category for the year as fixed by statute. When the rate of approval of immigrant visas (green cards) approaches the maximum allowable, the State Department begins restricting the rate at which applications can be filed or approved. This is done by publishing on a monthly basis the priority date "cutoffs" for each visa category - immigrant visa applications with priority dates on or before the published cutoff date for the category (i.e., their priority date is "current") can be filed, or if pending, can be approved; applications with priority dates later than the published cutoff date cannot be filed or approved (if pending) and must wait until their priority date becomes "current." The published cutoff dates may sometimes retrogress (i.e., go backward over time rather than forward), according to the State Department's estimate of usage.

October 2004 Visa Bulletin

A link to the current State Department Visa Bulletin is always available at www.usabal.com. BAL clients interested in further information should contact their attorney.