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Since October 2005, there has been widespread retrogression in all of the employment-based categories (EB1, EB2 and EB3). For now, only Chinese and Indian nationals are affected in the EB1 and EB2 categories. EB3 has retrogressed across the board for all nationalities. * As a reminder, the EB1 category includes individuals of Extraordinary Ability, Outstanding Researchers and Multinational Executives and Managers. The EB2 category includes all advanced degree professionals (requiring at least a Master's degree or equivalent) who have filed labor certification applications as well as individuals of exceptional ability and National Interest Waiver applicants. The EB3 category includes skilled workers and professionals (Bachelor's degree or at least two years of training/experience) who have applied for labor certification. The Visa Bulletin is the DOS's summary of immigrant visa availability for family- and employment-based cases. EB immigrant visa number availability is determined by the category of a case, the priority date (date it was first filed), and the beneficiary's country of birth. In order to file (and approve) an I-485, Application for Adjustment of Status or to consular process for an immigrant visa, your priority date must be "current" - a visa number must be available. If the retrogression is not corrected, this will mean additional delays for your case. Please note that labor certification or EB immigrant petitions that are filed more than 365 days before the end of the beneficiary's H-1B validity period, enable individuals to extend their H-1B status in one-year increments past the six-year period, if necessary. In addition, individuals with approved I-140 petitions (regardless of date of filing) who are subject to the retrogression will also qualify for extensions of H-1B status beyond the six-year limit. H-4 dependents are also eligible for extension of their status. As noted above, individuals who currently have adjustment of status applications (I-485) pending are also subject to the retrogression. While such applicants will not be able to receive an approval of their application until their priority date is current, they will be able to obtain new employment authorization and advance parole travel documents until a visa number becomes available. It is important to point out that the October Visa Bulletin does not apply until October 1, 2005. Until this time, the September Visa Bulletin remains in effect; therefore, individuals in the EB1 and EB2 categories with approved labor certification applications or pending I-140s may file their I-485 Adjustment of Status applications before October 1st. Otherwise, such individuals will have to wait for their priority date to become current before filing their adjustment applications. Please remember that while some individuals will be eligible to file their case before October, these cases will continue to pend until the priority date becomes current. Until October 1st, the EB1 and EB2 categories are "current" for all nationalities. The EB3 category is unavailable for all nationalities. Some individuals who are subject to the retrogression may be married to individuals from different countries of origin (birth). Provided that the spouse's country of birth is not affected by the retrogression, the principal spouse (applicant) may be able to take advantage of the "Alternate Chargeability" rule and may be charged to his or her accompanying spouse's country of birth. This would allow the applicant to be essentially "exempted" from the retrogression. On a related note, dependent children may also be charged to their parent's country of birth, yet the reciprocal is not allowed (a parent cannot be charged to the country of birth of their child). Finally, individuals with previously approved I-140 petitions who have since changed jobs, may seek to recapture the priority date from the old petition and apply it to their new case. Of course, a new I-140 (and Labor Certification, if applicable) will be required, but this rule allows such individuals to "jump the queue" so to speak by utilizing the date of the individual's first application.
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