Employment based categories used up for FY 2007

The August 2007 Visa Bulletin announced that all employment categories have been exhausted for the remainder of fiscal year 2007. The new fiscal year begins October 1, 2007. At that time, new cutoff dates will be announced for the employment based categories.

If there are enough visas to meet all the applications in a particular category, the category is "current." If there are not enough visas, then a "priority date" is established. No one can have an adjustment approved, or an immigrant visa issued, if the person's priority date is later than the priority date established in the visa bulletin.

In cases based on a labor certification, the priority date is the date the labor certification was originally filed. In cases that are not based on a labor certification, the priority date is the date the I-140 immigrant worker petition was filed.

No adjustment application can be filed until the priority date is current. If the adjustment is now pending, it cannot be approved until the priority date is current.

People with pending adjustment applications whose priority dates are no longer current remain in adjustment "status," and can still get EADs and advance parole, and can change employers after 180 days.

Workers with approved I-140 petitions who are not able to file adjustment applications will not be able to get EADs or change employers under AC21. The only way to remain in the US will be to keep working in H-1B status using seventh year extensions, or in another valid nonimmigrant status such as O-1. You can get a seventh year extension if your labor certification has been pending for at least one year or if you have an approved I-140 but cannot adjust due to the retrogression in priority dates.

Workers with an approved I-140 who are unable to adjust because their priority dates are not current are eligible for three-year H-1B extensions.

Are there any ways to "leapfrog" the backlogged employment categories to get a Green Card faster? There are a few:

• If a person has an earlier priority date based on a different labor certification from a previous employer, this priority date can be used if there is an approved I-140 based on that labor certification, and the I-140 has not been withdrawn by the employer.
• In the case of a married couple from different countries, the couple can use the nationality date of either person if both are immigrating together. For instance, if the principal applicant is from India and the spouse is from Canada, the principal applicant can use the Canadian priority date.

Our firm practices both U.S. and Canadian immigration. The Canadian alternative should be considered carefully, especially by workers from India and China who are now facing a wait of many years.