October 7, 2005

Dear Clients and Friends,

Possible Quota Backlogs Coming for All Countries

When the Department of State released the October Visa Bulletin, we were confronted, for the first time in memory, with backlogs in visa number availability for natives of China and India in the E1 and E2 employment based categories (the E3 category has been backlogged for several months). Applicants born in any other countries were not affected by these developments.

There is now widespread speculation that in the near future, these backlogs may extend to all countries of the world. If this happens, it will no longer be possible to file an Adjustment of Status (I-485) application concurrently with an I-140 Immigrant Visa Petition claiming eligibility for E1 or E2 status. Neither will these applicants be able to secure an appointment to obtain an Immigrant Visa at an American Consulate unless they have a “Priority Date” which precedes the cut-off date on the Visa Bulletin (see below).

The earliest possible date that any backlog would go into effect is November 1, 2005. WE DO NOT KNOW FOR SURE THIS WILL HAPPEN, ONLY THAT IT IS A POSSIBILITY. Moreover, we should know within the next week the when the State Department releases the November Visa Bulletin. If the backlog develops as of November 1, it is crucial that any applications currently in preparation by these individuals be received by the Immigration Service on or before October 31 to take advantage of concurrent filing. The applications may remain pending for a long time but the applicants will continue to have access to Employment Authorization and Advance Parole for the duration. They may also continue to extend H-1 status beyond the normal six year limit.

Even if no backlog develops as of November 1, it seems likely that it will occur in the coming months. This is simply the result of the Immigration Service moving more quickly to approve cases in the pipeline, therefore drawing down on the available pool of numbers allocated for each fiscal year.

The E1 category (referred to collectively as “Priority Workers”) includes Managers/Executives, Outstanding Professors or Researchers, and Aliens of Extraordinary Ability.

The E2 category includes applicants with an approved Labor Certification where the job requires at least a Masters Degree, or applicants who claim National Interest Waivers.

If a backlog develops, it will STILL BE POSSIBLE to file I-140 Immigrant Visa Petitions claiming eligibility for any of these categories. Doing so will establish a Priority Date on the waiting list of visa applicants. However, applicants cannot obtain Employment Authorization or Advance Parole travel authorization on the basis of an I-140 filing alone. If the I-140 is approved, the applicant can proceed with an I-485 OR Immigrant Visa interview only when their Priority Date is reached on a future Visa Bulletin. However, there is clearly the potential for a lengthy delay before that time comes.

Alternate Chargeability

Applicants are usually charged to the quota of their country of birth, regardless of current citizenship. However, there are a few exceptions. The most common is the ability to be charged to the country of birth of an accompanying spouse. For example, a principal applicant born in India whose accompanying spouse was born in the United Kingdom may use the quota of the United Kingdom, thereby avoiding the lengthy delay he or she would otherwise be faced with.

This subject matter can be quite confusing and therefore we welcome specific questions.