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The October 2005 Visa Bulletin Warrants An Amendment to INA 245(a)(3)

by Dinesh Shenoy

The October 2005 Visa Bulletin recently released [1] comes as a shock to every employment-based immigrant. Given the even further retrogressions on this Bulletin over the June 2005 bulletin (and ignoring for the moment the three months of temporary skilled/professional EB-3 unavailability across the board), Congress should consider repealing or amending INA 245(a)(3) with respect to employment-based immigrants.

INA 245(a)(3) says that an I-485 application cannot be filed unless "an immigrant visa number is immediately available to [the worker] at the time his [or her] application is filed."

The appearance of cut-off dates for Indian and Chinese EB-1 and EB-2 workers plus across-the-board cut-offs for EB-3 aliens of all countries means that it might now be several more years before workers in these categories can file an I-485 application.

That there are cut-off dates on Visa Bulletins[2] is not in itself something to complain too much about; cut-off dates are a function of the fact that America does not have unlimited immigration. The need for cut-off dates in deciding who gets a green card this month (and who has to wait) is the result of the natural operation of the numerical limit created by INA 201(d) (total 140,000 EB visa numbers per fiscal year). In the family arena, cut-off dates and slow forward movement is an accepted fact of life. However, the fact that the Employment-Based chart has gone from showing "current" visa number availability for the past 3+ years (June 2001 to December 2004) to now suddenly having severely backlogged cut-off dates appear in the span of less than one year is not "natural" (compare the December 2004 Bulletin to the upcoming October 2005 Bulletin).

Instead, this sudden retrogression is the result of USCIS' backlog of employment-based I-485s being allowed to build up for several years during which approvals of such 485s ground to a near halt, followed by the much-anticipated (and welcome) backlog elimination plan. [3] It's great that USCIS is now suddenly cranking out I-485 approvals. Getting all these 485 approvals recently feels really good, but too much of a good thing is . . . well, not good. The long dry-spell of 485 approvals followed by the recent flood of 485 approvals is what is causing these extreme cut-off dates to suddenly appear with little warning. [4] If for the past four-to-five years employment-based I-485s were approved at a steady rate, we would have had Visa Bulletins with always some amount of backlog. But it would have been a less severe backlog coming all at once; there would have been a more orderly advancement of the cut-off dates. Suddenly an EB-3 Russian Software Engineer, who a few months ago could anticipate being able to file a concurrent 140/485 any day now once his "in process" pending PERM Labor Cert is approved, now with little warning faces waiting another 3-4 years before being able to file his I-485.

And the inability to file a 485 sooner rather than later is not mere inconvenience. It's more than H-4 spouses and children being delayed several years on being able to finally get a Social Security Number (which requires an EAD card first). It means that the protection for the whole family against lay-off available under the "portability" rule contained in INA 204(j) remains out of reach. If you have an I-140 approved as an EB-3 petition but you are facing a wait of several years to even file a 485, you are in precarious position. Even if your savvy immigration lawyer assures you that you can get a special 3-year extension of H-1B status beyond your 6-year limit under the as-of-yet-not-often-invoked AC21 104(c) (with memos and liaison notes he's just itching to use for your H-1B extension), that doesn't quell your worries.

For instance, when you are in year-8 of H-1B status and still have not filed your I-485 and then your company downsizes and lays you off, that's it, that's the end of the line. You burned up all your H-1B time in hopes you could get your 485 filed before your job was eliminated. If you had filed your 485 like your friend in the next cube over from you who just happened to have his PERM Labor Cert approved a few weeks ago (while yours is still "in process"), your friend who was able to get his I-485 in before the EB-3 category backlogged into the Stone Age, you'd be able to port like he is going to once he finds another job. But you didn't get your I-485 filed and so now you will be going back home, maybe never to return.

I appreciate the enormous task that faces USCIS to adjudicate millions of benefits applications ever year. I think that Congress appreciated this as well when it passed AC21. The whole point of the "I-140 portability provision" (INA 204(j)) was to acknowledge that it took too long for employment-based 485s to be approved and that foreign workers should not lose their ability to get a green card if they were going to be able to go on and fill another position in the same industry and make the same contribution to the economy and society generally. But portability never even comes into play if you never get to file your I-485 in the first place.

Therefore, I propose that Congress amend INA 245(a)(3) to add the following underlined language so that the provision reads as follows:

" ... and (3) except in the case of an alien who is the beneficiary of a petition filed under paragraphs (1), (2) or (3) of section 1153(b) of this title, an immigrant visa is immediately available to him at the time his application is filed."
With this revised language, an I-140 beneficiary would be able to file his or her I-485 once an I-140 is filed [5], even if they know it will be many years before their priority date is reached. They would still have to wait for their turn to actually receive Permanent Residence in priority-date order.[6] But the situation would be more akin to that of asylees at the time when there was a cap on asylee adjustments.[7] Congress still gets to keep a limit on how many aliens actually got Permanent Residence based on employment, but in the meantime aliens who had demonstrated they had the right qualifications to be in the United States and are not taking a job away from a minimally qualified US worker will have more stability, greater peace of mind and will be able to get important interim benefits for derivatives while they wait for their priority date to be reached.
1Available online at
2 INA 203(e)(3); 8 USC 1153(e)(3).
3 See "USCIS Announces Backlog Elimination Update", News Release dated March 22, 2005. Available online at USCIS noted that the overall backlog of all immigration benefits applications (including I-485 applications for Permanent Residence) had reached a high of 3.8 million in January 2004, and that the backlog was reduced to 1.5 million by September 30, 2004.
4The December 2004 Visa Bulletin stated "In recent months [DOS has] been experiencing very heavy applicant demand in the Employment categories as the Citizenship and Immigration Service has begun to address their backlog of [I-485] cases." In the January 2005 Visa Bulletin, DOS offered a more detailed explanation of the reason for re-establishing EB cut-off dates and predicting future unavailability, citing a combination of the effect of the "recapture" provisions in AC21 and the development of the I-485 backlog at USCIS. Subsequent Bulletins up to the present time have repeatedly cited the continuing heavy demand of visa numbers due to USCIS clearing up its I-485 backlog. See footnote 1, supra.
5 This proposed amendment to the Act would supercede (and require the rewriting of) 8 CFR 245.1(g)(1) & 245.2(a)(2)(i)(A), which together are commonly referred to as the "concurrent filing rule."
6 I.e., this amendment would in no way change the basic rule of fairness in INA 203(e)(1) that family-based and employment-based immigrant visas "shall be issued . . . in the order in which a petition in (sic) behalf of each such immigrant is filed with [DHS.]"
7 See INA 209(b); 8 USC 1159(b) (2004), recently amended by 101(g) of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (eliminating the 10,000 cap on asylee adjustments per fiscal year).

About The Author

Dinesh Shenoy is an associate attorney with Ingber & Aronson PA in Minneapolis, practicing exclusively in the field of immigration law with an emphasis on employment-based cases, family-based cases and advising criminal defense counsel on the immigration consequences of crimes. He has chaired a 3-part teleconference on Adjustment of Status for and has published articles for the American Immigration Lawyers Association (AILA) on the "concurrent filing rule", H-1B extensions of status under the American Competitiveness in the 21st Century Act ("AC21"), and H-1Bs for Business Professionals. In 2003 he won the AILA Mentor Award for "Outstanding Efforts and Excellent Counsel to Immigration Attorneys By Providing Mentoring Assistance." He has spoken on employment-based immigration at the AILA Annual Conferences in 2003, 2004, and 2005 and spoke about the "Child Status Protection Act" on a nationwide teleconference shortly after the CSPA was enacted, as well as numerous presentations to general audiences in Minnesota. He served on AILA's 2004-05 Liaison Committee to the Nebraska Service Center (NSC) of the US Citizenship and Immigration Services (USCIS).

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.