Cut-off Announced in the Availability of U.S. Visas

By Attorneys Robert L. Reeves and Brian Spalter

On December 8, 2004, the United States government released the immigrant visa availability numbers for the month of January 2005. What makes this latest release particularly important, however, is that it informs us of the fact that immigrant visa numbers for the Employment Based Third Preference category will retrogress to January 1, 2002. This is an extremely important development that affects a wide variety of people who have already or are planning to apply for certain work-related immigrant visas. Just two examples of the many workers that are impacted by the retrogression are Nurses and Physical Therapists. It is extremely important, therefore, to fully understand the retrogression as well as the impact it might have on your immigration plans.
In order to comprehend the significance of this development, it is important to first have a general understanding of the U.S. immigrant visas system. This article will discuss some of the more pertinent issues so that you may better appreciate the full impact of the retrogression.

What is the difference between an immigrant and nonimmigrant visa? – As a starting point, it is important to first understand the difference between nonimmigrant and immigrant visas. A nonimmigrant visa is a visa that allows a foreign national to come to the U.S. for a temporary period of time (e.g. H-1B, F-1, B-2, etc.) An immigrant visa, on the other hand, allows a foreign national to come to the U.S. on a permanent basis. In other words, an immigrant visa entitles someone to obtain a “green card.”
Because the retrogression announced by the government exclusively affects immigrant visa numbers, only people seeking to come to the United States permanently are impacted.
What is a “retrogression” in immigrant visa numbers? – Each year, the United States government has a certain number of immigrant visas that it may issue worldwide. This number is fixed by U.S. immigration law. Unless there is a change in the law, this number cannot be increased.

In addition to this limit on the number of immigrant visas available worldwide, the law places a further limitation on the number of such visas available to each country. Therefore, when the demand for immigrant visas from a particular country exceeds the limit set by U.S. immigration law, a backlog occurs. The result is that people from a backlogged country must wait until visas become available before they can have their application processed.
When the government announces that there is a “retrogression” in immigrant visa numbers for a particular country, it is announcing that visa numbers are no longer available for that country. In fact, a retrogression means that the demand for immigrant visas has so far exceeded the supply that applications commenced before a certain date (in this case January 1, 2002) will no longer be processed. A retrogression, therefore, has two primary effects: (a) the United States will cease accepting immigrant visa applications for cases that were not commenced before January 1, 2002; and (b) the United States will stop processing previously filed immigrant visa applications for cases that were commenced on or after January 1, 2002. It should be noted that the date on which a case is commenced is a complicated issue and you should, therefore, discuss the particular circumstances of your case with an attorney.

Who is affected by the retrogression? – The people affected by the retrogression are those that fall in the “third preference” employment based category. There are a wide variety of occupations that are covered by this category. Generally speaking, any job that requires less than a Master’s degree is considered a third preference occupation. As noted above, just two of the more prominent examples are Nurses and Physical Therapists.
In addition, because a retrogression is the result of demand exceeding availability in a particular country, only three countries (the Philippines, mainland China and India) are affected.

What to do if you think the retrogression might affect you – If you believe that you might be affected by the retrogression, you should contact an immigration attorney immediately.
As noted above, the retrogression was announced with regards to the January 2005 visa numbers. In other words, the retrogression does not go into effect until January 2005. This is particularly important for people who are currently in the United States because it provides them with a very brief opportunity (i.e. until January 2005) to file an immigrant visa application before the government stops accepting them.

In conclusion, the retrogression of Employment Based Third Preference visa numbers is a major development that will greatly affect a wide variety of immigrant visa applicants. It should be emphasized that this is an extremely complicated area of the law and this article only provides a brief summary of the more important issues. If you have specific questions about the retrogression, third preference employment visa applications or any other immigration matter, we strongly encourage you to contact our office to discuss your case with one of our attorney.