August 2001 priority dates

Most of the priority dates in the family-based petitions have either gone backwards or become unavailable in the August 2001 Priority Dates, listed in the monthly Visa Bulletin released by the State Department.

This means that those persons whose priority dates have either "retrogressed"or become unavailable cannot be processed for green cards or a visa until their priority dates become current again, possibly on October 1, 2001, when the new immigration fiscal year starts.

The priority dates for both skilled and non-skilled workers under the employment-based petitions, on the other hand, remained current. This means that those who have INS-approved I-140 employment-based immigrant petitions, even as non-skilled workers, may now file for adjustment of status, and be processed for a green card.

Those family categories which are "unavailable"are the First Preference Category, F-1 (unmarried sons and daughters of U.S. citizens, over 21 years of age); and the Third Preference Category F-3 (married sons and daughters of United States citizens).

Because of this unavailability, the INS will not process any adjustment of status application, and the various U.S. Consulates abroad will not grant visas to persons petitioned under these categories until visas become available again, possibly in October 2001.

The priority date for the Second Preference, 2A (spouse and minor children — below 21 years of age — of green card holders) of family-based petitions was set back by almost one year and nine months, from September 22, 1996 to January 1, 1995.

The Second Preference, 2B (unmarried sons and daughters, over 21 years of age, of green card holders), which was set back by almost six months in the July listing, remained at January 1, 1993.

The Fourth Preference, F-4 (brothers and sisters of United States citizens), was the only category that moved forward, as it advanced by another two weeks, from September 1, 1979 to September 15, 1979.

Why did the priority dates in most categories of the Family-Based Petitions retrogress or become unavailable? And why are those of the Employment-Based petitions current?

The Immigration and Nationality Act has set up annual quotas or number of visas for each category of both the Family and Employment-Based Petitions. These numbers are used up by both the INS, for those adjusting status in the U.S., and the Consulates abroad, for those living outside the U.S.

In the previous years, the INS concentrated on processing applications for naturalization, rather than on adjustment of status cases, resulting in reduced demand for visas or green cards from the annual quotas. The Visa Office was thus forced to advance the priority dates very rapidly in order to ensure that all of the quotas during those years, could be used.

However, after the bulk of the naturalization cases had been disposed of, the INS has re-focused its work on adjustment of status cases, thus increasing the demand again for visas. Once the INS began requesting more visas, the scenario changed. The Visa Office has thus been unable to advance, and had, in fact, been forced to set back (or make unavailable) the monthly Family cut-off dates, because the amount of demand being received on a monthly basis (from Embassies, and now recently, the INS) has exceeded the available visas for issuance at Embassies and adjustment of status in the U.S.

The Visa Office said it expects further retrogressions and unavailability in September, the last month for the current immigration fiscal year. However, with the start of the new fiscal year in October 2001, any cut-off date that has been retrogressed or became unavailable may return to the latest cut-off date established during the current fiscal year.

Note also that the Employment-based categories are "current"and are expected to remain current in the foreseeable future for the following reasons:

1. The Employment annual limit (quota) is at an all-time high (approximately 190,000);

The American Competitiveness in the 21st Century Act removed the per-country limit if there were unused quota available;

The same Act established a "pool"of about 130,000 unused Employment-based quota available from fiscal years 1999 and 2000.

Each month, the Visa Office of the State Department publishes the priority dates for that particular month. This means that visas would now be available for persons whose priority date is earlier than the cut-off.

Michael J. Gurfinkel has been a licensed attorney in California for 21 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239. For more information about the Law Offices of Michael J. Gurfinkel, and to read previously published articles, please visit our website at www.gurfinkel.com.

(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)