Breaking News: Immigrant Visa Number Retrogressions for EB-1 and EB-2 for Chinese and Indian Nationals

On September 13, 2005, U.S. Department of State announced the Visa Bulletin for October 2005. The published visa bulletin shows significant retrogressions of visa numbers for EB-1 and EB-2 categories for individuals who were born in China and India . Visa numbers for Chinese for both EB-1 (including Alien of Extraordinary Ability, Outstanding Researcher, and Intra-company Transferee ) and EB-2 (including NIW cases) retrogress to a cut-off dates on January 1, 2000 and May 1, 2000, respectively. For Indians, EB-1 and EB-2 visa availability regresses to August 1, 2002 and November 1, 1999, respectively. For EB-3 cases, the visa numbers continue to have cut off-dates for all countries (cut-off date of May 1, 2000 for Chinese, January 1, 1998 for Indian, and March 1, 2001 for the rest of the world).

What this means? In simple, this means people from China who are filing EB-1 cases or NIW cases will no longer be eligible for filing I-485s after September 30, 2005. In October 2005, those Chinese who filed NIW cases on May 1, 2000 or earlier will be eligible to file I-485 cases; those who filed EB-1 cases in January 1 2000 or earlier will be eligible to file I-485 cases. Same methods apply to Indian nationals. The Bulletin indicates that future forward movement in these dates is likely to be limited. So, people who have not filed I-485s before October 1, 2005 are expected to wait for a long period of time before visa numbers (and the right to file an I-485) become available for them.

Most Asked Questions related to Visa Number Retrogression:

1. I am a Chinese. Can I file an NIW I-140 after October 1, 2005?

Answers: Yes. Chinese and Indian nationals can file NIW I-140 and EB-1 I-140 petitions after October 1, 2005. Availability of visa numbers does not impact the eligibility to file your I-140 case. But you will not be able to file an I-485 until the visa number is available.

2. What are the benefits of filing an I-140 NIW or EB-1 earlier when the visa number is not available?

Answers: Filing an I-140 NIW or EB-1 petition will establish your priority date, which means putting you in the waiting line for visa number. The earlier you file, the earlier the date you will become eligible to file an I-485. Also it will give you the benefit to extend your H-1B if you meet certain requirements. [see questions below]

3. I am an Indian national. Can I file an EB-2 or EB-3 PERM now?

Answer: Yes, Chinese and Indian nationals are eligible to do PERM for labor certifications now. They can also file I-140s upon approval of the labor certifications. The visa number retrogression only impacts the eligibility for filing an I-485.

4. What are the benefits of filing for a labor certification under PERM earlier when the visa number is not available?

Answers: Filing of a PERM case establishes your priority date, which means putting you in the waiting line for an I-485 visa number. The earlier the filing, the earlier the date you will become eligible to file an I-485. Also it will give you the benefit to extend your H-1B if you meet certain requirements. [see questions below]

5. Who is eligible to extend H-1B beyond six years?

Answers: There are two situations that you may extend your H-1B beyond six years:

Situation one: If you have a PERM case or I-140 case that had been filed 365 days before you reach the six-year H-1b limitation, AND, the immigration case is still pending (either PERM , I-140 or I-485), you will be eligible to extend your H-1B on an annual basis beyond sixth year. You may extend so for many years until your case comes to an end (denial or final approval of green card).

Situation two: If you have an I-140 (either EB-1, NIW or after PERM I-140) case approved before the six-year limitation (regardless the filing date for I-140 or PERM), if you cannot file an I-485 because an immigration visa is not available to you (like the current visa bulletin), you will be eligible to extend your H-1b until your case comes to an end (final approval of green card or denial). You can request an extension for three years extension each time (rather than one year extension in situation one).

Please note, on both above situations, your H-1B employer does not necessarily have to be your I-140 sponsor if you are in the PERM path to a green card and your PERM employer is willing to continue to sponsor your immigration petition. However, you need to come back to work for your PERM employer either during the pendency of the I-485 or after your green card is approved.

(09/14/2005)

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