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Many Employees May File Adjustment of Status Applications in July; Future Unavailability of Visas is Predicted


Employers should be aware that the “priority date” in every employment-based immigrant visa category except the “unskilled workers” will become current as of July 1, 2007, and will remain current at least until July 30, 2007.

For employees with approved or pending immigrant visa petitions, or with approved labor certifications, this priority date movement means the employees and their family members (if applicable) will be able to file applications for adjustment of status to permanent residence  during the month of July.   This email will answer some of the common questions we are getting regarding the effect of the priority date movement on your employees.

Which Employees Can Potentially Benefit From The Priority Date Movement?

In order to be able to take advantage of the priority date movement, an employee must be eligible for an immigrant visa. The employee must have either an approved labor certification, or must be able to apply for adjustment of status in one of those categories in which no approved labor certification is necessary (outstanding researchers, national interest waivers, and “Schedule A” nurses and physical therapists). Also, any person with a pending labor certification as a professional or skilled worker will be eligible to file for adjustment of status if the labor certification is approved in the next 45 days.

Employees for whom the labor certification process has not yet been initiated will not likely benefit from this priority date movement, as there is not enough time to complete the required recruitment and get a labor certification approved by the Department of Labor in the narrow window while the priority dates are current.

What Are Priority Dates, And How Are They Assigned?

Section 201 of the Immigration and Nationality Act allocates 140,000 immigrant visas per year for the employment-based preferences, and the Department of State is charged with ensuring that no more than that number of immigrant visas (or adjustments of status by USCIS) are issued in each of the government’s fiscal years.

The Department of State controls the number of visas issued each year though the “priority date” system. When an employment-based immigrant visa petition or labor certification is filed by an employer, the foreign national’s “priority date” is established – for example, if a labor certification was filed with the Department of Labor on September 1, 2003, and later approved, an immigrant visa petition based on that labor certification would have a “priority date” of September 1, 2003. If an immigrant visa petition not requiring a labor certification was filed on September 1, 2003, it would also have a priority date of September 1, 2003.

Each month, the Department of State issues a publication called the Visa Bulletin, in which the “priority dates” eligible to apply for immigrant visas or adjustment of status are listed. If, for example, the foreign national’s priority date is September 1, 2003, but the current priority date listed in the Visa Bulletin is November of 2002, the foreign national will have to wait to submit an application for adjustment of status, or to have a pending application for adjustment of status approved.

Why did the priority date move so much?

The Department of State controls the counting of immigrant numbers to make sure that as many of the 140,000 available visas are used each year as possible, but the USCIS actually processes the vast majority (more than 85%) of the employment-based green card applications.  Because USCIS accepts cases when the priority date is current without reserving an immigrant number, but may not process that case for six months to two years or more, USCIS has a large “inventory” of cases it could decide, depending on where the priority date is set by the Department of State.  This year, the Department of State has moved the priority date forward by a large amount so that USCIS has a larger part of its inventory that it could, potentially, decide.  Whether USCIS actually grants a particular case depends both on immigrant visa number availability but also other factors, such as USCIS workload, security clearances, and interview scheduling.  The unintended benefit of moving the priority date is that even more adjustment of status applications can be added to the USCIS inventory.

How long will it take for an employee to get a green card after he or she applies?

Processing times are extremely difficult to predict in this scenario. In order for the case to be granted, USCIS must complete its processing before the Department of State decides to move the priority date backwards (called “retrogression”). It is very likely that the priority dates will again retrogress in the coming months, in which case the employee’s I-485 will remain pending and the employee will continue to be able to obtain and extend employment authorization documents and advance parole travel documents (or the employee’s H-1B status, if applicable) while the adjustment application remains pending.

Is there any deadline for me to file these adjustment applications?

If the employee does not file an application before the priority date retrogresses, the employee will have to wait for it to advance again in order to file that application. Based on discussions our lawyers have had with the office in the Department of State that controls the allocation of immigrant visa numbers, we do not anticipate that the retrogression will happen before the end of the summer, but we do expect retrogression when USCIS begins processing large numbers of applications.

Where can I get further information?

For further information about the effect of the priority date advancement on your company’s employees, please contact the Firm, and one of our staff will assist you.

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