Important Information on Visa Retrogression

By Keil Hackley

February 15, 2006 – As you know, there has been a sudden and significant retrogression of immigrant visa numbers that directly affects individuals who are applying for lawful permanent resident status under the Third Employment-based immigrant visa category.

This letter follows up on our recent communication to you and attempts to answer some of the commonly asked questions regarding this rather complicated issue of retrogression. Additionally, this letter will serve as an educational tool so that you may maximize the benefit you will receive from attending our March 7, 2006 seminar.

What basic information do I need to know to understand the issue of retrogression?

Immigrants in the United States are divided into two categories: (1) those who obtain lawful permanent residency without numerical limitations and (2) those who obtain lawful permanent residency but are subject to an annual limitation. This latter category is divided into family-sponsored immigration, employment-sponsored immigration, and diversity immigrants. The focus of this letter, and the upcoming seminar, is on employment-sponsored immigration.

The world-wide level of employment-based immigrant visas is set at 140,000 which is divided into five preference groups as follows:

  • Priority workers; persons of extraordinary ability in the sciences, arts, education, business or athletics; outstanding researchers and professors; and certain multinational executives and managers. (40,000 green card visa.)
  • Members of the professions, meaning professionals with advanced degrees and persons of exceptional ability in the sciences, arts, and businesses (40,000 green card visas.)
  • Professionals, skilled and unskilled workers, meaning professionals holding a bachelor’s degree, skilled workers with at least two years experience, and other workers whose skills are in short supply (40,000 green card visas.)
  • Special immigrants, meaning certain religious workers, ministers of religion, certain international organization employees and their immediate family members, and qualified U.S. government employees (10,000 green card visas.)
  • Investors, meaning persons who create employment for at least 10 unrelated persons by investing capital in a new commercial enterprise in the U.S. (10,000 green card visas.)

What do you mean by retrogression?

The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 – September 30) in all five visa categories. The law also provides that no one country may have more than a specific percentage of the total number of visas available annually. Retrogression occurs when these limits are exceeded in a particular category for a particular nationality. A waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date.” The Priority Date is the most important factor in determining when a green card visa will become available to you.

What is a Priority Date?

In order to obtain a green card visa number, a visa number must be available to you. Your place in line is determined by your Priority Date. If your priority date is current and there is no backlog of visas in the visa category in which you are applying, you are eligible to apply for the green card.

How can Priority Dates be tracked?

The U.S. Department of state publishes a Visa Bulletin each month. This bulletin summarizes the availability of immigrant green card numbers. You can access the Visa Bulletin on line at www.travel.state.gov or more specifically at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. The Bulletin for March 2006 is currently posted.

What date is my Priority Date?

If your green card application requires a labor certification, your priority date is the date your labor certification is filed with the Department of Labor, State Workforce Agency. Consequently, in all third-preference cases, and second-preference cases, the Priority Date is the date the labor certification is filed. If your category does not require the filing of a labor certification, as with first-preference cases, the Priority Date is determined by the Department of Homeland Security, not the Department of Labor, and is the date the Form I-140, Petition for Immigrant Worker is filed.

How can I skip ahead of the visa backlog?

Unfortunately, you can’t. However, if you are currently in the third-preference category and believe you qualify for the first or second preference category, you may want to consider filing a new Immigrant Visa Petition in one of the those two categories. Otherwise, you will have to wait until you are eligible to apply along with the others on the list before proceeding with filing the last step of the green card process. The last step is the filing of an application to adjust status to that of a lawful permanent resident in the U.S. (the Form I-485) or by obtaining an immigrant visa at a U.S. Consulate aboard (visa process.)

What caused retrogression of visa numbers in the first place?

The USCIS has improved processing times and, thus increased the rate which approvals are issued. Thus, the number of visa green visa numbers issued increased, essentially exhausting or limiting their availability.

How quickly will visa green card numbers become available?

The rate at which visa numbers will become available depends on the demand for visa numbers, together with the rate at which USCIS approves adjustment of status applications in the U.S. and the rate in which U.S. Embassies approve immigrant visa petitions filed abroad.

Is visa chargeability based on country of birth or citizenship?

Your country of birth is the determining factor.

Is it possible to use my spouse’s country of birth?

Yes. Your spouse’s country of birth may be used to determine chargeability. For example, if you were born in the Philippines and your spouse was born in France, and there is a retrogression of visa numbers for the Philippines, you may use your spouse’s country of birth for chargeability purposes.

What preference categories are currently backlogged?

At the writing of this letter, only the third-preference category is affected by visa retrogression. With the exception of India and China, worldwide Second-preference numbers are current, but may retrogress during the second quarter of fiscal year 2006.

We look forward to seeing you at the March seminar and hope we are able to answer more questions at that time.