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Employment Visas Backlog

It has just been announced that employment-based immigrant visa numbers will start to backlog in all employment-based categories for applicants born in China and India starting October 1, 2005. All other countries in EB-1 and EB-2 are not backlogged for October.

EB-1: Outstanding Researcher / Professor, no Labor Cert

  • China - January 1, 2000
  • India - August 1, 2002

EB-2: Advanced Degree Professional, Labor Cert

  • China - May 1, 2000
  • India - November 1, 1999

EB-3: Skilled Workers / Professionals, Labor Cert

  • China - May 1, 2000
  • India - January 1, 1998
  • Mexico: January 1, 2001
  • Philippines: March 1, 2001
  • All other countries: March 1, 2001

What Does This Mean?

Starting October 1, 2005, it means that if your priority date is before the date listed for your EB category and you have an approved I-140 petition, you may file an I-485 application, or be eligible for an immigrant visa if you are consular processing instead of filing an I-485 application.

If your priority date is on or after the date listed, you cannot file your I-485 or get an immigrant visa at a consulate at this time. You need to maintain your current immigration status to remain in the U.S.

What Is a Priority Date?

Your priority date is the date on which your Labor Certification was received by the Dept. of Labor or, if you did not have to file a Labor Certification, the date your I-140 petition was received by Immigration.

What if I was Born in China or India, but I am Now a Citizen of Another Country?

Visa numbers are based on your country of birth, regardless of your current citizenship. But if your spouse was born in another country that is not subject to the backlog at this time, you will be able to "cross-charge" your I-485 application to your spouse's country (this is known as "alternate chargeability").

My I-485 is Already Pending with Immigration, What Now?

If you already have a pending I-485 application with Immigration, you will continue to be able to apply for and/or to renew your work and travel permits while the backlog continues.

My Labor Certification Is Still Pending, What Now?

Your priority date determines when you will be able to file your I-485, so if your Labor Certification has been pending a long time, you may be able to file your I-140 and I-485 at the time it is approved, depending on what the backlog date is for your country at that time.

What about My H-1B Status; My 6 Years Are Almost Reached?

If your Labor Certification has been pending for at least 365 days, we will continue to be able to extend your H-1B status for one year at a time beyond the normal 6-year maximum in H-1B status. Once your I-140 has been approved, and if your country is still backlogged so you cannot file your I-485, we can extend your H-1B status for up to 3 years.

Will These Backlog Dates Change?

Yes, they will eventually change. It is also possible that they may retrogress further. To stay informed about the dates, you may wish to subscribe to the monthly Visa Bulletin published by the State Department:
http://travel.state.gov/visa/bulletin/bulletin_2631.html