Visa Retrogression (Backlog) and Visa Numbers
As you may have heard, the visa numbers in the EB-1 and EB-2 categories will be severely backlogged for individuals born in India and China, beginning October 1, 2005. Additionally the visa numbers for all applicants in the EB-3 category have retrogressed even further. What this means is that only individuals who have a current priority date will be able to file their adjustment of status applications as of October 1, 2005.
As of October 1, the current priority dates are as follows:
EB-1 India: August 1, 2002
EB-1 China: January 1, 2000
EB-1 All Other: Current
EB-2 India: November 1, 1999
EB-2 China May 1, 2000
EB-2 All Other: Current
EB-3 India: January 1, 1998
EB-3 China: May 1, 2000
EB-3 Mexico: January 1, 2001
EB-3 Philippines: March 1, 2001
EB-3 All Other: March 1, 2001
Since the EB-3 visa numbers were already retrogressed, only those in EB-1 and EB-2 have a small window until September 30th to apply for adjustment of status, and of course their I-140 has to have been filed and receipted or ready to file in order for this to be feasible. One exception to this is if you are married to someone who is born in a country other than India or China in which case your spouse’s country of birth can control. For example, if you were born in China and applied in the EB-2 category and have a priority date of January 2002 you would not be able to apply for some time.
However, if your spouse was born in Taiwan then you could apply in October because the visa numbers for those born in Taiwan are not backlogged.
Additionally, Congress provided 50,000 new visa numbers for applicants in the Schedule A category. The law on these numbers is not crystal clear but we believe it applies to all Schedule A workers, meaning those of exceptional ability, as well as nurses and physical therapists. Schedule A, Group II workers of exceptional ability are generally considered EB-2. However, the new law suggests that if you are in this category you are removed from the traditional EB-2 category for purposes of visa numbers, at least until the new 50,000 visas are allotted.
We have no way of knowing how quickly the visa numbers will move forward and so cannot say when you will be able to apply to adjust status to permanent residence. We remind you that provided your labor certification or employment petition (I-140) was filed by the end of your 5th year in H-1B time that you remain eligible to apply to renew your H-1B visa beyond the 6 year limit. We encourage you to check the visa numbers at the Department of State website; the visa bulletin is usually updated by the 15th of each month. The website is http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html;