The Retrogression of EB-1 and EB-2 for China and India

The Visa Bulletin for October 2005 came as a bombshell to many employers, foreign workers and immigration lawyers.  Not only is the second preference employment-based visa category becomes retrogressed¹ for China and India, to everybody’s surprise, the first preference employment-based visa category is also going to be retrogressed for these two countries. 

EB-2 Retrogression

Although it has been predicted by many that the EB-2 categories will likely become retrogressed, most people believed the retrogression would not happen until 2006.  As it turned out, two countries will become oversubscribed as of October 1, 2005:  China’s priority date will be 1 May 2000 while India’s will move back to 1 November 1999.  This category of visas is widely used by foreign nationals with advanced degrees or exceptional ability.  These changes will affect tens of thousands of scientists, researchers, IT workers, and other professionals. 

EB-1 Retrogression

The retrogression in EB-1 came even as a bigger surprise.  EB-1 is for priority workers to apply for lawful permanent status in the U.S. without having first to test the job market by applying for a labor certification.  It was created for foreign nationals who have extraordinary ability, outstanding researchers and professors, and managers and executives of multinational companies.  For years, this preference category has been current for all countries.  However, the October 2005 Visa Bulletin shows that the priority dates for China and India will be retrogressed to 1 January 2000 and 1 August 2002 respectively.

Causes and Effects

The causes of retrogression are likely attributable to the recent changes in the labor certification process.  The creation of PERM – the new online system – has accelerated the whole labor certification process.  The creation of the backlog reduction centers has also resulted in more labor certifications than in the past few years.  In fact, more than 300,000 labor certification applications are expected to be adjudicated soon by these backlog centers.  Ironically, this is exactly what the Department of Labor has been asked to do for many years.  The effect of a streamlined labor certification is to push the bottleneck now to the next step  – the filing and processing of I-140/I-485 applications.  It is difficult to predict how serious the problem is and to what extent the impact will be for the employers and foreign workers.  Many top-notch scientists, engineers, researchers, etc., will likely choose other countries for immigration to avoid the complexity and long waiting process involved in the U.S. immigration process.  One can only hope that Congress will act soon before it is too late.

What can Indian and Chinese workers do now?

The October bulletin will only be effective on October 1, 2005.  All applications filed before October 1, 2005, will be received based on the September 2005 visa numbers.  This means that, for example, an Indian or Chinese EB-1 applicant may still file the I-140 and I-485 together now because these visa classes are still current in September.  Another advantage of filing early is that the accompanying employment authorization and advanced parole applications may also be filed now, allowing foreign nationals to work and travel while their I-485s are pending.  The ability to work and travel will be important as the I-485s will likely take years to adjudicate.  As every case is different, it is extremely important for the foreign workers and employers to consult a qualified immigration attorney as soon as possible.  Truer than ever - timing is critical here.

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1) Priority Date: To understand retrogression, one must first understand the concept of priority dates.  There are only fixed numbers of immigrant visas allotted for each category of immigration, and there is a per-country limit on the total number of immigrant visas (7% of the total family-based and employment-based immigration quota).  However, the number of applicants from each country in each preference category varies.  Visas are issued to immigrant petitions on a first come, first served basis.  If the number of petitions for a particular category and class are greater than the available visa numbers, those who filed after a certain date will not issued a visa.  This cut-off date is called the priority date.  When a certain preference category is “retrogressed,” it means that there exists a priority date.  Only those applications filed before the priority date will receive an immigrant visa.  Those who filed after that date will have to wait.  In the Visa Bulletin, the symbol “C” means that the visa numbers are current; the dates are the priority dates; and the symbol “U” means that all visa numbers for that class has been used up for the year.   

 For questions about retrogression, please contact our office at 732-632-9888.

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Copyright © 2005 Paul Szeto LLC