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Implications of the recent EB-2 priority date retrogression

Posted on Wednesday, June 13, 2012

When the U.S. Department of State (DOS) released its monthly visa bulletin for July 2012, we learned that the volume of applications for permanent residence in the EB-2 category is now so great that a worldwide priority date for EB-2 has been establishedJanuary 1, 2009 was selected as the priority date for all countries except India and China.  (For nationals of the latter two countries, EB-2 visa numbers are entirely unavailable until at least October 1, 2012, and probably longer.)

chicago immigration attorney lawyer retrogression priority date eb-2 india china perm labor certification adjustment status permanent resident green card The term commonly used to describe a backward movement of priority dates is “retrogression”.  In this case, priority dates were current (no wait for a visa number) but have now retrogressed by 3½ years.  As a result, beginning July 1 and until further notice, only applications for adjustment of status with a priority date on or before January 1, 2009 will be adjudicated. 

 What is a priority date?

§         For those in the EB-2 category who have applied for a National Interest Waiver, the priority date is the date on which the National Interest Waiver petition was received by USCIS.  This date is shown at the top left of every I-140 receipt notice.

§         For those in the EB-2 category who have been following the PERM process for employer sponsored permanent residence, the priority date is the date on which the approved Labor Certification Application was filed with the Department of Labor. 

What happens when priority dates regress?

§         For an individual who has already filed his or her your adjustment of status and is waiting for a decision, the adjustment application will now be held until the priority date becomes current.  It is impossible to predict how quickly priority dates will advance during the next 6-12 months, so monthly checks of the Visa Bulletin are imperative. 

 §       If an individual is currently eligible to file his or her adjustment of status, it must be filed prior to June 30, 2012 or it will not be accepted until your priority date becomes current again.  An application submitted now will not actually be adjudicated until the priority date is current, but an Employment Authorization Document and a travel document (Advance Parole) can be obtained based on the pending adjustment.

 §        Someone who expects to be eligible to file an employment-baesd adjustment of status in the EB-2 category but is not yet eligible will need to wait to file their adjustment of status until their priority date is current.

Maintaining legal status

Anyone who has yet to file an adjustment of status must maintain an underlying legal status (e.g. H-1B, L-1, etc.) or return abroad and wait until their priority date becomes current.

Those whose adjustments are already pending or will be filed this month are urged maintain an underlying legal status as well.  While the pending adjustment entitles them to a work permit and a travel document, should their adjustment application be denied, they will immediately be out of status and will need to return abroad even if an appeal is filed.

 What next?

The DOS is likely to issue some guidance as to the movement of priority dates in the EB-2 category at the start of the next fiscal year on October 1, 2012.  We will keep our readers apprised of all developments in this area.

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