Most Employment-Based Priority Dates Current for August 1999!
Posted Aug 3, 1999

The Law Office of Sheela Murthy is delighted to announce that for the month of August 1999, the priority dates for all employment based categories, other than for unskilled workers, are current, for nationals of all countries.

This news is particularly refreshing for nationals of China and India who have been caught in backlogs which have been taking anywhere from around 2 years for EB2 nationals of India up to 5/6 years for EB3 applicants from China.

Those eligible to apply for the I-485, Adjustment of Status application, based on an approved I-140 Petition (for EB1, EB2 and EB3), I-360 (for EB4) or I-526 (for EB5) are well advised to apply during August 1999 for the adjustment of status, since there is no assurance that the numbers will stay current even for another month. It is possible that the numbers could regress substantially if the demand for visa numbers surges forward because of vast numbers of applicants filing adjustment applications during the month of August 1999.

Please note that there is probably no advantage to having an I-485 package received by the INS exactly on August 1, 1999, as opposed to August 10th or 20th or any time during the month of August 1999. The dates are current for the entire month of August 1999. In most cases it will take five weeks or more for the case to be entered into the computer and the receipt to be issued. Processing time for those cases received during the first week of August will probably not be faster than for those received later in the same month.

The Law Office of Sheela Murthy has already started receiving several e-mails and telephone calls requesting a clarification and analysis on how the priority dates system operates. As mentioned before in some of our Immigration Bulletins, the priority dates are based on world wide visa usage since there are per country quotas, and quotas for each employment based category. So countries like China and India are subject to the same quotas as smaller countries. This results in the nationals of the larger and heavily populated countries suffering backlogs and their inability to file until their priority dates become current.

There is no simple answer to the question as to how the priority dates suddenly became current. We could attempt to analyze this phenomenon but our hypothesis may not be accurate since it is merely a conjecture! It is possible that the sudden and rapid surging forward of the priority dates for employment based cases is merely a one month window of opportunity resulting from numerous complaints by several companies lobbying their elected representatives because the 6 year H1B status will be expiring for many H1B candidates in the near future. It is also possible that all dates are now current (meaning the demand for visa numbers is low) and could stay current for a few months and any regression may be nominal (does not seem very likely based on the backlogs for the last year or two). It could be that the U.S. State Department is attempting to gauge the backlogs by allowing candidates for 1 month to file adjustment applications with the INS. Or it could be a method to increase adjustment applications in the U.S. rather than having too many cases being processed at consulates abroad. No one knows for sure!

Please note that even if the dates regress during the month of September 1999, those who have filed the I-485 in August 1999 based on the priority date being current are eligible to obtain the Employment Card or advance parole. The INS will continue processing the I-485 even after the dates regress but the person cannot obtain the eventual I-485 approval until the date is current. Since I-485 processing is so slow at present, and is taking anywhere from an average of 1 year and up to 3 years, there is a good chance that most people will be able to benefit from filing the I-485 promptly.

It is wise for most eligible candidates to file for the I-485 application before the end of August 1999, unless we find out in mid-August 1999, that the dates continue to remain current for the month of September 1999 too. If the dates are not current for the month of September 1999, then eligible candidates should file for adjustment of status in August 1999. This may even be wise for those intending to get married in the near future, since the spouse can enter on an H4 under the new rules effective from July 1, 1999, if the principal adjustment applicant does not undertake open market employment and continues to work solely for the H1B employer. For additional details on adjustment applicants who are eligible to reenter the U.S. on the H1B visa, please see last months New Flash of the Law Office of Sheela Murthy dated June 11, 1999.