Labor Certification Attorney on Priority Date Retrogression

The June 2009 Visa Bulletin has just been released and once again many of the Employment Based preference categories continued to retrogress or have become unavailable. During the last several months we have seen a continued trend of this retrogression. For example, visa availability for the second preference category for Indian born applicants has moved back by five and a half years in less than a year. It moved from June 1, 2006, as published in the August 2008 Visa Bulletin, to January 1, 2000, as published in this June 2009 Visa Bulletin. Does this mean an Indian born applicant who will file a labor certification application in June of 2009, under the second preference category, will have to wait eight and a half years in order to receive a green card? Not exactly.

Keep in mind that there are no cases with a January 1, 2000 priority date because that day was a Saturday and one day after a federal holiday. Federal offices were not open to accept applications. So, based on the currently released Visa Bulletin, the second preference, Indian born applicant with a filed labor certification or immigrant visa petition in 1999 or earlier may file for an adjustment of status. Translation: No visas are available at this time as it is virtually impossible to find an unadjusted, decade old petition in this category. I believe the January 1, 2000 date referenced above was politically chosen. A priority date availability from the prior decade (which is only one day earlier) would be politically incorrect and would not be looked upon favorably. This is also consistent with the visa numbers for third preference categories across the board being released as unavailable for the second month in a row.

Some of my clients with labor certification applications currently being prepared emailed me and asked the obvious question, is it even worth it to file for a PERM labor certification at this time? The answer to this question is quite simple. Absolutely, it is worth it. I will outline a summary of the reasons and hope to provide more detailed explanations in future blogs.

  • Filing a labor certification and immigrant petition may permanently preserve the priority date even if the employee changes employers, or the employer restructures in the future under the priority date transferability rules.
  • Filing a labor certification may allow the foreign national to extend their H-1B visa beyond the six year limit until they obtain final green card approval.
  • Filing a labor certification will allow the clock to start ticking towards obtaining the green card. Not filing means the foreign national is continuously guaranteed a spot at the end of the line.
  • Priority date retrogression may have an impact on those who have a pending application for a few years. This retrogression virtually has no impact on new filers.
  • Anyone that follows the Visa Bulletin date fluctuations understands this phenomenon has become the norm, and much of the fluctuation may have to do with politics.
  • The June 2009 Visa Bulletin is only a snap shot in time. I would not be surprised if visa availability swings the other way shortly before, or after October 1, 2009.We all know that dates move back and forth as we approach the end of fiscal year to assure that we are not loosing visa allocations as it happened in prior years.

The key thing to remember is obtaining the assistance of counsel with experience in this field is essential in helping you understand your options so you are able to make good informed decisions.