DOS Announces Retrogression in Employment-Based Visa Numbers

The State Department announced that, effective January 1, 2005, there will be retrogression in the availability of immigrant visas ("green cards") for Employment-based third preference applicants from India, China, and the Philippines. The employees impacted by this development are those with a Bachelor’s Degree and/or more than two years of prior job experience. At this time, individuals with advanced degrees are not affected.

In recent years, all Employment-based categories have been "Current" for all countries, primarily as a result of two factors:

1. The American Competitiveness in the Twenty-First Century Act (Title I of Pub. L. 106 - 313 enacted on October 17, 2000) contained several provisions intended to increase the availability of Employment-based numbers. Pub. L. 106-313 recaptured those Employment-based numbers that were available but not used in Fiscal Years 1999 and 2000, creating a "pool" of 130,107 numbers which could be allocated to applicants in the Employment First, Second, and Third preference categories once the annual Employment-based numerical limit has been reached. Approximately 101,000 of these "pool" numbers remain available for use during FY-1005. Pub. L. 106-313 also removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.

2. Changes in USCIS processing procedures during the past two years created a significant backlog of cases and a consequent reduction in demand for numbers. During the time that the Employment-based categories have remained "Current" many tens of thousands of applicants have become eligible to file for adjustment of status. Last summer, USCIS notified Congress of its intent to eliminate its current backlogs by the end of FY-2006. As a result of the USCIS backlog reduction effort, the State Department is now experiencing very heavy visa demand as USCIS has begun to process cases to conclusion. Section 201(a)(2) of the Immigration and Nationality Act states that not more than 27 percent of the Employment-based annual limit may be used in each of the first three-quarters of a fiscal year. Based on the current rate of demand, the 27 percent level for the first quarter of FY-2005 will be exceeded by the end of December.

The State Department has therefore imposed an Employment-based Third preference cut-off date of January 1, 2002 for January, 2005 in order to limit number use during the second quarter. Many of the cases have priority dates that are several years old, and the cut-off date represents the first priority date that cannot be accommodated for final processing. The cut-off date will apply only to the following chargeability areas: China-mainland born, India, and Philippines. Cut-off date movement during the remainder of FY-2005 depends on the extent of future visa demand. No specific predictions are possible at this time.

The Visa Bulletin is available on the State Department's website.

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