Tips Regarding EB-3 Retrogression in April Visa Bulletin

We post a practice tip from AILA member Jill Bussey at Baker and McKenzie, very useful

A close review of Paragraph E of the April 2009 Visa Bulletin, issued March 9, 2009, reveals the Employment Third Preference Worldwide and Philippine cut off of March 1, 2003 was effective immediately upon issuance of the Visa Bulletin. This has been confirmed by communications with Charles Oppenheim of the State Department. Mr. Oppenheim indicated he attempted to stave the cut-off through March, however the demand for EB3 numbers was too high. Mr. Oppenheim reiterated the information found in the Bulletin, “since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or “unavailability” at any time cannot be ruled out.” Mr. Oppenheim advised 85-95% of Employment Based adjudications occur through USCIS, which has been expediting the processing of Third Preference cases. He also shared that he has seen increased demand in First Preference cases from 2007. It is highly unlikely the Third Preference category will remain available in the near future. Further retrogression or “unavailability” may occur at any time.

The impact of the April Bulletin is multi-faceted. Whether immigrant visas can be issued by consular posts at interviews this month will depend upon whether the post obtained the visa number prior to the announcement of the cut-off. Additionally, USCIS will not approve any adjustments in these categories with cutoff dates before May 1, 2005, unless the visa number already had been assigned. We do not yet know definitively if USCIS will repeat its actions from the summer of 2007 and reject adjustments that are filed during the month of March based on the March Visa Bulletin issued February 10, 2009, but it seems unlikely that they will. Employment based adjustment of status applications for families could be impacted where the principal alien and dependents have been separately adjudicated and their visa numbers were not reserved before March 9.

On the other hand, more people will be eligible for AC21 extensions of H-1B status under Section 104(c), as well as issuance of 2-year EADs and limited premium processing for immigrant petitions.