Eng & Nishimura

As most of our clients already know, the Employment Based Priority Dates are current for July 2007. The dates are only current for a very brief time. Just enough time to file Adjustment of Status applications for those who are eligible to do so.

The sole reason the Visa Priority Dates are current, is that the Federal fiscal year is coming to an end and the Department of States wants to ensure that as many of the visas for the fiscal year are used up, instead of being wasted as in years past. By making all dates current, USCIS and the Department of State can adjudicate those cases that are ready for adjudication, thereby using up the visas.</>

The Visa Priority Dates will not remain current long. They will almost certainly remain current for all of July, and possibly August. In September they may become completely unavailable and may even do so in mid-August.

Without any doubt, the Visa Priority Dates will retrogress no later than October 2007. The Department of State has stated that the retrogressions in October will be “severe.” That strongly suggests that the retrogressions will be in the order of several years, and can be expected to go back to dates close to the April 2007 dates.

Given that USCIS cannot even process the Adjustment of Status applications it already has in a timely manner, it is impossible for it to process those applications it is receiving in June and July, 2007 before the visa priority dates retrogress. Once the visa priority dates retrogress, USCIS will only be able to work on those case for which the priority dates remain current. By law, it cannot grant those cases for which the priority date is not current, and will therefore place those cases in priority date order on a shelf to wait for the priority date to become current once again.

Therefore, for EB-3 cases for all countries, one should expect that it will be several years before USCIS can grant the adjustment of status. EB-2 cases for at least India and China will also have to wait for the priority dates to become current again.

The fact that Visa Priority Dates were current at the time of the filing of the Adjustment of Status only means that USCIS can accept the filing. It does not mean that USCIS can adjudicate the case even if the Priority Dates retrogress. For it to be able to adjudicate the case, the priority date of the case must be current at the time of adjudication.