The Department of State (DOS) recently issued the Visa Bulletin for October 2005, which summarizes the availability of immigrant visas for the month of October. It shows that in the employment-based, third-preference category, for most countries, visas are available to individuals with a priority date of March 1, 2001, or earlier. For individuals from India, visas are available to those whose priority date is January 1, 1998, or before, and for individuals from China, visas are available to individuals whose priority date is May 1, 2000, or before.

In the second-preference category, visas are available to individuals from China with priority dates that fall on or before May 1, 2000, and for individuals from India, visa are available to those whose priority dates fall on or before November 1, 1999. Surprisingly, visa availability dates have also retrogressed in the first-preference category, with visas available to China and Indian nationals whose priority date falls on or before January 1, 2000 and August 1, 2002, respectively.

The DOS states on its website that "Forward movement of the cut-off dates in these categories is likely to be limited."

These backlogs may directly impact the ability of foreign nationals to work in the U.S. in nonimmigrant status while attempting to adjust their status. Please note that under American Competitiveness in the Twenty-First Century Act, ("AC21"), H-1B nonimmigrants who have I-140 petitions filed and who are unable to adjust status because of per-country limits are eligible to extend their H-1B nonimmigrant status until their application for permanent residence is decided.

Background: Congress has allocated a limited number of visas for each employment-based and family-based category. When more applicants request visas than the allocated number of visas available, this creates a "waiting list" for visas. An individual's number on the waiting list is his or her priority date--the date the individual applied for a labor certification or applied for an immigrant visa, if no labor certification was required.

The Department of State visa bulletin can be viewed at:
http://www.travel.state.gov/visa/frvi/bulletin/bulletin_2631.html
Please contact us if you have questions or concerns regarding this matter.