September 13, 2005 - The State Department today released the October Visa Bulletin announcing major retrogressions in green card availability for commonly used employment-based categories. Priority Date cutoffs set for October are as follows:

Each immigrant visa petition has a priority date associated with it (e.g., the date the original application for labor certification was filed, or the date the I-140 petition was filed if no labor certification was required in the category).

The State Department monitors on a monthly basis the number of immigrant visas or green cards that are issued in each category and compares this number to the total available for that category for the year as fixed by statute. When the rate of approval of immigrant visas (green cards) approaches the maximum allowable, the State Department begins restricting the rate at which applications can be filed or approved. This is done by publishing on a monthly basis the priority date "cutoffs" for each visa category.

Immigrant visa applications with priority dates on or before the published cutoff date for the category (i.e., their priority date is "current") can be filed, or if pending, can be approved.

Applications with priority dates later than the published cutoff date cannot be filed or approved (if pending) and must wait until their priority date becomes "current."

The published cutoff dates may sometimes retrogress (i.e., go backward over time rather than forward), according to the State Department's estimate of usage.

The priority date system directly impacts employment based green card applicants in the following ways:

1. Individuals who have not yet filed their I-485 application for adjustment of status will be eligible to file that application only when their priority date is current (i.e., the priority date is on or before the cutoff date published monthly by the State Department in the Visa Bulletin);
2. Individuals who have filed their I-485 application for adjustment of status will not have their green cards approved until their priority date is current. However, these adjustment of status applications will continue to be considered to be pending for the purpose of applying for employment authorization documents and advance parole documents;
3. Individuals with approved I-140 petitions who apply for their immigrant visa through a US consulate in their home country must have a current priority date at the time the immigrant visa application is filed and at the time the application is approved by the consulate.

BAL Comment: This announcement is unexpected and is contrary to the modest forecast of upcoming rollbacks previously announced in the September Visa Bulletin. BAL is working with employers and attorneys nationwide on new legislation to resolve the problems created by current numerical limits on immigrant visa availability. Current priority dates may be monitored by consulting our website at http://web1.usabal.com/processing/visabulletin.html. We will continue to report updates on priority date cutoffs as they become available.