Immigration Law Advisory- Retrogression of Employment-Based Immigrant Visa Numbers

Retrogression of Employment-Based Immigrant Visa Numbers

What is Visa Retrogression?

The Immigration and Nationality Act (INA) provides that an annual maximum of 140,000 employment-based immigrant visas (“green cards”) may be issued.   The employment-based immigrant visas are divided among five “preference categories.”  Obtaining an immigrant visa may require a labor certification from the U.S. Department of Labor (DOL) and/or the filing of a visa petition with the U.S. Citizenship and Immigration Services (CIS).

Because the INA limits the number of immigrant visas that can be issued each year in each category, the Department of State (DOS) is charged with regulating the flow of visas to ensure that the annual statutory limit is not exceeded.  It does so by means of a monthly Visa Bulletin which indicates whether visas are available each month to beneficiaries in the various family and employment-based immigration visa categories.  If visas are available in a category, that category is deemed to be “current” and beneficiaries who qualify for permanent residence under that category may file their applications with the CIS or seek to obtain an immigrant visa through consular processing abroad.  When the DOS determines that the current rate of demand might lead to too many visas being issued in a particular category, it deems that category to be “oversubscribed” and imposes a cut-off date for filing applications in that category based on an applicant’s “priority date.”  The priority date is the date when the beneficiary’s labor certification or immigrant visa petition was filed.  When a cut-off date is imposed, it means that only individuals with priority dates earlier than the date listed in that category are eligible to apply for permanent residence (“green card”).  When a category becomes oversubscribed and a cut-off date is imposed because the category no longer is current, or when the cut-off date in a category moves backwards, the visa numbers in that category are said to have “retrogressed.”   

In September 2005, DOS announced that, beginning October 1, 2005, employment-based immigration visa numbers would start to backlog in the first three employment-based categories for individuals born in China (mainland) and India .  As of the December 1, 2005 Visa Bulletin, China and India are still backlogged in these categories, but all other countries in the first two categories remain current (see below for explanation of categories and for more details).  So far, Chinese, Mexican, Filipino and Indian workers have been the hardest hit by retrogression.   The category for skilled workers and professionals has retrogressed across the board for China, India, Mexico, the Philippines, and all other countries.  

Please note: the following information is specifically for the month of December 2005 and DOS issues a new visa bulletin each month.  To stay current about cut-off dates, you may wish to subscribe to the Monthly Visa Bulletin published by the DOS at http://www.travel.state.gov/visa/

Visa Availability in the Employment-Based Preference Categories:

First (EB1), Priority Workers - Outstanding Professors/Researchers; Persons of Extraordinary Ability; and Multinational Executives and Mangers (L-1A):  To qualify for the first two categories of Priority Workers, the alien must provide extensive documentation that he or she has achieved international recognition and is at the top of his or her field of endeavor.  Labor Certification is not required. Priority dates are current as of December 1, 2005, except for:

China  - 1 July 2001
India - 1 February 2003  

Second (EB2), Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability in the Arts, Science, or Business:   To qualify in the first category, the position must require a Master’s degree or PhD, or a Bachelor’s degree plus 5 years of progressively responsible experience equivalent to a Master’s level degree.  To qualify as an alien  of exceptional ability, the alien must provide extensive documentation of his or her eligibility.  Labor Certification is required, or the applicant must receive a waiver of the requirement based on the national interest.  Priority dates are current as of December 1, 2005 for all countries, except for: 

China  - 1 February 2001
India - 1 July 2000     

Third (EB3), Skilled Workers, Professionals, and Other Workers: To qualify as a Professional, the position must require a minimum of a Bachelor’s degree; to qualify as a Skilled Worker, the position must require a minimum of two years of experience or training.  Labor Certification is required.  Priority dates (with the exception of Schedule A workers (Registered Nurses and Physical Therapists)) are: 

China  - 1 January 2001
India  - 1 January 1999
Mexico  - 1 February 2001
Philippines  - 15 March 2001

All other countries: - 15 March 2001

Priority dates for Schedule A workers are current for all countries.  

Fourth (EB4), Certain Special Immigrants and Fifth (EB5), Immigrant Investors.  At this time, these categories remain current. 

What does Visa Retrogression mean for you?

If your application for labor certification has been approved and your employer has filed an I-140 petition on your behalf which is pending adjudication or has been approved, you may file an I-485 application (“green card application”) with the CIS, or process an immigrant visa application abroad, only if your priority date is earlier than the date listed for your category.

If your priority date is on or after the date listed, you can not file your I-485 application or apply for an immigrant visa at a US Consulate abroad at this time.  In other words, you will not be able to begin the final phase of your green card case until your priority date becomes current.  

IMPORTANT NOTE:  you must maintain your current immigration status to remain legally in the US and to be eligible to file a Form I-485 adjustment application.  Also, please note that even though your country’s and category’s priority date may now be current, this situation may change.  DOS has acknowledged that it expects the priority dates for each country to retrogress further, and countries which now are current may retrogress in the coming year.

1. How does visa retrogression affect you if your labor certification is still pending adjudication at one of the Department of Labor Backlog Processing Centers?

Your employer will be able to file an  I-140 (Immigrant Petition for Alien Worker) on your behalf when your application is certified, but you will be eligible to concurrently file your I-485 application only if the visa numbers in the category in which you qualify are current or if the cut-off date in your category is later than your priority date.  If your category is not current and the cut-off date in your category is the same as or earlier than your priority date, you will not be able to file your I-485 adjustment application until that category becomes current or the cut off date moves forward and goes beyond your priority date.  The date when you and your dependent family members will be eligible to apply for your green cards depends completely on the backlog in your preference category for your country.

2. How does visa retrogression affect you if you have already filed your I-485 (green card application) and it is awaiting adjudication at the CIS?

You should be able to continue to apply for and renew your travel permit and work authorization, but the CIS will not approve your I-485 application unless or until your priority date is current.

3. Can you move ahead in the quota line and avoid retrogression delays?

There is no way to get ahead in the line, other than filing an immigrant visa petition in a higher preference category in which the visa numbers are current, if you are qualified to do so.

4. What if you were born in China/India/Mexico/Philippines, but are now a citizen of a different country? 

Priority dates are based on your country of birth, not your country of current citizenship. However, if your spouse was born in another country that is not subject to a backlog, you maybe able to “charge” your I-485 application to your spouse’s country of birth.  This can only be done, however, if you and your spouse file your applications at the same time.  NOTE: You can not use the country of birth of your child for this purpose.

5. Can your spouse work if you are waiting to be eligible to file your I-485 (green card application)?

Your spouse cannot file a Form I-765 (Application for Employment Authorization) until he or she is eligible to file the I-485 application.  Your spouse is not eligible to work in the US unless he or she is in the US in a non immigrant visa status which allows employment, such as H-1B, or unless he or she is eligible to obtain employment authorization from the CIS as the spouse of an individual in L, E, or J status.

6. How can you preserve your H-1B status while waiting for your priority date to become current if you have been in H-1B status for almost six years?

If your application for labor certification or your I-140 (Immigrant Petition for Alien Worker) has been pending for more than 365 days prior to the date you reach the six-year limit, you are eligible to extend your H-1B status in one-year increments beyond the normal six-year maximum until you are able to file your I-485 application.  If you are the beneficiary of an approved I-140 petition and you are unable to file your I-485 due to the backlogs, you will be eligible to apply for an extension of your H-1B (and your dependent's H-4) in increments of three years.

DOS has announced that it expects retrogression of employment-based visa numbers to continue at least through 2006, in the absence of Congressional action to increase immigrant visa numbers or to allow DOS to recalculate the numbers used in previous years and recapture any unused numbers.  As you can see, the retrogression of immigrant visa numbers and the resulting inability of aliens to file for or obtain permanent residency have serious implications for both foreign nationals and the US employers who sponsor them.  Please contact us if you have questions or to discuss your individual circumstances and concerns.

Lynda S. Zengerle   lzengerle@steptoe.com  (202) 429-8170
Joan S. Claxton  jclaxton@steptoe.com  (202) 862-3891