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Visa Priority Date Retrogressions

Beginning with the first Visa Bulletin for the 2006 Federal Fiscal Year, that for October 2005, visa priority dates for employment based cases retrogressed. Those categories that retrogressed are seriously backlogged and can be expected to remain backlogged for years to come.

How does this affect your case?

You have filed an Application for Adjustment of Status and your priority date is after the date listed in the Visa Bulletin

CIS will hold on to your Application for Adjustment of Status until a visa becomes available for your priority date. You should continue to maintain your non-immigrant status.

USCIS is reporting processing times after the filing date of your I-485

The processing times being reported by USCIS are meaningless for cases for which the priority date is not current. USCIS cannot process cases for which priority dates are not current.

The processing times reported by USCIS are the equivalent of say Amazon.com saying that they are currently shipping orders received yesterday. However, just as Amazon.com cannot ship your order if the item you ordered is backordered, USCIS cannot adjudicate your case when your priority date is not current. Just as Amazon.com’s statement that they are currently shipping orders placed yesterday is meaningless to orders for merchandise that is backordered, the processing times reported by USCIS are meaningless to cases where the visas is essentially backordered.

Your Labor Certification has been approved, but you have not yet filed an Application for Adjustment of Status.

Unfortunately, even though your employer can proceed to file the I-140 petition, you will not be able to file your Application for Adjustment of Status. You will not be able to file your Application for Adjustment of Status until your priority date is reached. You therefore must continue to maintain your non-immigrant status, even if this means that you will have to file for an extension every year.

CIS will process your employer’s I-140 petition based on their normal processing times, as that petition is not affected by the visa priority dates.

You have a PERM Labor Certification filed

The US Department of Labor will continue processing the Labor Certification as that processing is not affected by the visa priority dates.

Once the US Department of Labor certifies your PERM Labor Certification, your employer must file the I-140 Petition. The CIS will process that petition under their normal processing times, as it is not affected by the visa priority dates.

You will then have to wait for your Priority Date to be reached before you can file your Application for Adjustment of Status.

You have had H-1B status for more than five years

By law, you can renew your H-1B for another year if, and only if, you have a Labor Certification, I-140, or I-485 that has been pending for one year or more.

If you are now contemplating filing a PERM Labor Certification because your RIR or Regular Labor Certification has not yet been certified, you can only do so if you do not want to keep the old priority date. In order to try to keep the old priority date, the US Department of Labor will require that the previously filed RIR or Regular Labor Certification be withdrawn. This means that it will no longer be pending. Because you will no longer have a Labor Certification pending for at least one year, you will not be able to extend you H-1B.

Although at this time it appears that it might be possible to keep the previously filed RIR or Regular Labor Certification, and also file a PERM Labor Certification by not requesting the old priority date, we do not know how long the US Department of Labor will continue to permit this. Because the purpose of the change to the PERM system is to get rid of their backlog, it is highly likely that in the near future the US Department of Labor will require that the previously filed RIR or Regular Labor Certification be withdrawn, even if one does not request the old priority date.

You have a child that will be turning 21 years old shortly

Unfortunately, based on current law, you child will probably not be able to immigrate with you. In order to be able to immigrate with you, their Applications for Adjustment of Status need to be filed before their 21st birthday. Although the Child Status Protection Act allows some flexibility, it does not allow enough flexibility to take the priority dates just announced by the Department of State into account.

Your child must therefore change his/her status no later than their 21st birthday, must maintain that status, and must seek other avenues of immigrating.

You must maintain your immigration status

Because long delays in the priority dates becoming current can now be expected, it is imperative that you maintain your non-immigrant status at all times. If you do not, you will be unable to get the green card.