Backlog Reduction may Impact Employment Priority Dates
Posted Aug 06, 2004
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The U.S. Department of State (DOS) Visa Bulletin for August 2004 mentioned that the priority dates in the employment-based categories could retrogress at some point in the future. One of the reasons for this is that the USCIS has embarked on a series of programs to reduce their case backlogs. Regular MurthyDotCom and MurthyBulletin readers are familiar with some of these efforts.
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Background
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One of the side effects of the faster processing efforts is that faster processing of green card cases creates an increased demand for immigrant visa numbers. Since there are a limited number of immigrant visas issued in each category each year, the increased demand causes backlogs in various categories. This has already resulted in the regression, or going backwards, of certain family-based priority dates. While the priority dates in employment-based cases remain current for all categories, increased demand could change this situation in the future. For more information on priority dates and their importance in the immigration process, see our MurthyDotCom article, Priority Dates: How do they Work? Basically, in order to complete the green card process either through consular processing or adjustment of status, there must be an immigrant visa number available. These visa numbers are allocated by DOS pursuant to annual legal limits. The tracking as to which cases have a visa number available to them, based upon the date the case was filed, is set out in a monthly DOS publication known as the Visa Bulletin, which we make available on MurthyDotCom.
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Family-Based Cases
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The cut-off dates given in the Visa Bulletin are based on estimates of the demand for visas. Since this demand is directly tied to how fast the DOL and USCIS process their respective portions of the green card cases, when they are faster, the demand increases. Certain family-based categories have already experienced retrogression in the cut-off date. This increased demand is expected to cause the forward movement of the family-based cut-off dates in other categories to either slow or stop.
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Employment-Based Cases
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Employment-based (EB) cases may also feel the impact of the increased demand in the future. The Visa Bulletin for August 2004 indicates that it may become necessary to establish cut-off dates in employment-based categories at some point in the future based on demand for visa numbers. The DOS, however, states that it is not known if or when this will happen in Fiscal Year (FY) 2005, which begins on October 1, 2004. If cut-off dates are established for affected cases, it would have an impact on both the ability to file the final portion of the green card case, as well as the ability to complete the case. That is, in the example of an adjustment of status, it is not possible to file an adjustment of status case unless the priority date is current. Once the adjustment of status is filed, if the cut-off dates retrogress, it is not possible to obtain permanent residence until the visa number becomes available. However, if the I-485 is filed when the numbers retrogress, the applicant has historically been able to remain in the U.S. and obtain an Employment Authorization Document (EAD) and Advance Parole (AP) extensions, if otherwise qualified. Also, it would likely help to have a case filed under the EB Second Preference (EB2) category, since the backlogs could increase in the EB Third Preference (EB3) category.
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Conclusion
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At this point, the issue as it relates to employment priority dates is speculative and based on a future estimate if cases are processed faster. The priority dates remain current in all categories. Moreover, even if cut-off dates are established at some point during FY2005 or thereafter, it may not be for all categories. This information therefore is not cause for any urgent concern. It is an issue of which to be aware for the future and to consider when deciding whether to proceed with filing a green card case now or wait for some later event. It may be better to file sooner to establish the earliest possible priority date in case the issue of obtaining an earlier priority date becomes important once again.
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