Priority Dates Retrogress to January 1, 2002 for EB-3 from India, China, and the Philippines

December 14, 2004

What is "Visa Retrogression?"

"Visa retrogression" is a term used by the State Department when it discovers that it has more applicants for visas than it has visas available to give. Immigration laws only allocate a limited number of visas per year. In the employment-based immigration context, the visas are parceled out between five categories, with visas allocated between each preference category.

State Department regulations try to parcel out visas to each country in a fair and consistent manner. If the number of applicants for a given country exceeds the number of visas allocated to that country by the State Department, the State Department is supposed to place individuals on a waiting list. The waiting list is based on the date when the initial petition or labor certification was filed with the Department of Labor, USCIS Service Center in the United States, or with the consulate abroad. This is known as the "priority date" for the petition, and this date stays with the application throughout the time that it is pending. Visas are issued to applicants based on the priority date on the application (first-come, first-served).

Unfortunately, backlogs have been created due to the lengthy processing times at USCIS service centers. Thus, a consulate may not receive a visa application until months or years after it has been filed. If the USCIS service center approves a large number of applications, or a large number of applications for a given country, they may forward more approved petitions to the State Department than the department has visas to give. Thus, a backlog is created, and waiting lists are established based on the priority date of the approved petition. Conceivably, if a large number of petitions were filed in the past, or a large number of petitions are all approved, the number of approvals at a given time may overrun the number of visas available.

When this situation occurs, the State Department lines up approved cases according to the priority date that is established when an applicant first files the petition for an immigrant visa or an application for a labor certification. Thus, when the State Department suddenly becomes overwhelmed, the priority date on the first petition in line may be from a few years in the past. When this happens, the State Department informs individuals that visas are no longer currently available, and the priority date of the first petition in line for a visa. As stated above, because it often takes months or years for these petitions to be adjudicated, the priority date of the first petition in line may be months or years old.

Is a "Visa Retrogression" Imminent?

Yes. As of January 1, 2005, visa numbers will retrogress for China, India and the Phillippines, in the third employment-based preference category, as there are more applicants from individuals from these three countries in this category than there are visas available. The State Department has indicated that visas will only be issued to individuals who have a priority date before January 1, 2002. It is possible that this date will retrogress further in the coming months.

Additionally, visa retrogression may expand to other specific countries or worldwide, and it may expand beyond the third preference category into others. Unfortunately, this information is generally guarded closely, and often we have little, if any notice.

What does this mean for me or for my employees?

The limitations may put some fairly serious limitations on both petitioning companies and the foreign nationals in the "green card" process. First, employers may need to continue to extend non-immigrant status for employees for a few years into the future. There are a number of provisions in the law that can help us take advantage of this, so please contact us if you have any questions. Further, as you know, the longer into the future that a business must project, the less inherent certainty there is that business conditions and labor requirements will remain the same. If you anticipate promoting an individual to a new position, a new labor certification may need to be filed. As your business plans change, we are happy to consult with you on the immigration impact of any new business strategy.

For employees, there is no question that visa retrogression can act as a drag on career advancement. Portability for individuals with an I-140 and I-485 pending is uncertain, and is subject to change if new regulations are issued. Moreover, an employee who loses a job may be forced to scramble to find another job or another non-immigrant status. For individuals without advanced degrees, one option is to go back to school and obtain an F-1 visa. If you are thinking about changing jobs, contemplating additional schooling or a career change, or are facing unemployment, please contact us at info@sternelkind.com for a consultation on the immigration impact of any new career strategy.