September 14, 2005

Dear Clients and Friends,

Quota Backlogs Coming October 1 for China, India

The Department of State has released the October Visa Bulletin. For the first time in memory, the Bulletin reflects 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 are not affected by these developments.

As of October 1, it will no longer be possible for natives of China and India 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 they 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).

Any applications currently in preparation by these individuals MUST be received by the Immigration Service on or before September 30 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.

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.

The Visa Bulletin does not state that NO visa numbers are available for these applicants, but that numbers are available ONLY for applicants who have already established a Priority Date which precedes the cut-off dates listed in the Bulletin.

The cut-off date for E1 China is January 1, 2000 and for E1 India is August 1, 2002.

The cut-off date for E2 China is May 1, 2000 and for E2 India is November 1, 1999.

It is STILL POSSIBLE to file I-140 Immigrant Visa Petitions claiming eligibility for any of these categories; doing so will establish their Priority Date. 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.