According to the November Visa Bulletin, the priority date for Schedule A has retrogressed to October 1st of 2005. This means that as of November 1st, those in Schedule A will not be able to file their I-140 and I-485 concurrently. There are a number of questions to be asked:

• Why did the priority dates for Schedule A go back to October 1st of 2005 and not 2002 or 2001 to go along with the rest of the 3rd employment-based category?

The answer to this question lies in the fact that the 50,000 visas made available to Schedule A workers has been almost used up, but not quite. As a result, the Department of State retrogressed the priority dates to the point where they feel just enough petitions will be filed in November to reach the limit of 50,000 visas. It is expected, that in November, all of the 50,000 visas will finally be used up. At that point, the priority dates for Schedule A workers will disappear and it will be identical to all other 3rd employment-based preference priority dates.

• Should you file your I-140 and Adjustment of Status before November 1st without adequately completing the posting requirement required by law?

As most of you in the Schedule A category are aware, the regulations require that the company post a job availability notice for 10 business days at the place of employment. The regulations also specify that the I-140 petition cannot be filed with USCIS until 30 days have passed from the last date on which the job availability notice is displaced.

This essentially means that anybody who did not begin the posting by mid-September will not be able to complete the 10 business day posting period plus 30 day moratorium on filing the I-140. With the knowledge that the priority dates have retrogressed and that they will probably go much further back the following month, the temptation is great to go ahead and file even though the posting requirement has not been met. The fact is that if the I-140 is filed with a posting that does not comply with the requirements, the I-140 will be denied. In turn, the I-485 will also be denied. You will not get your filing fees back from the government.

• Will more visas be made available for Schedule A workers?

We simply do not know. Some employers and attorneys are working hard to make Congress realize that more visa numbers need to be made available to these occupations because there is a well documented shortage of professionals in this category. However, we have to stay tuned and see whether Congress will act to ameliorate this problem. To be sure, it will be easier if employers of PTs and RNs contact their congressional delegation to let them know how this shortage affects their business and the healthcare provided to constituents.

• I am not a Schedule A worker but I notice that the priority dates in general have moved at a good pace in the last few months. Can we expect this to continue?

The answer to this is contained in the latest Visa Bulletin where the Department of State warns all of us that the movement of priority dates at a fast clip is not going to continue forever. The rapid movement is a result of light demand at the moment. However, as the Department of Labor and USCIS clear their backlogs, we can expect that priority dates will slow, stop and go backwards in some categories.