Visa Retrogression, What is it?

By Attorneys Robert L. Reeves and Joseph I. Elias

At the beginning of this month, January 2005, the visa numbers available for green cards for professionals and skilled workers (known as the EB-3 category) from the Philippines, China, and India became oversubscribed. In essence the demand for the numbers far exceeded the supply. This created a three-year waiting list for numbers which is known as retrogression.

Your place in the line is set by your priority date. For occupations requiring labor certification, the priority date is the date the labor certification application is filed either through Reduction in Recruiting (RIR), traditional filing, or through PERM. Occupations not requiring labor certification such as RNs, physical therapists, and national interest waivers set a priority date on the day the CIS receives the immigrant visa petition.

The Visa Office of the Department of State controls the allocation of visa numbers. This is set by statute in the Immigration and Nationality Act. Numbers are distributed to U.S. consulates world-wide and CIS offices on a monthly basis based on the numbers available that month, the priority dates of the prospective immigrants registered at such offices, and the applicable area ceiling on the number of visas that may be issued to natives of any single foreign state.

Up until January 2005, visa numbers for EB-3s were current. This meant that if you were in the U.S., you could file for an adjustment of status to that of a lawful permanent resident concurrently with your immigrant visa petition. Or, if overseas, you could process your immigrant visa at the U.S. consulate once your immigrant visa was approved. But with the retrogression, consular processing or adjustment of status applications for applicants from the oversubscribed countries are only available for those with priority dates prior to January 2005.

The numbers became oversubscribed because the CIS is clearing its backlog of EB-3 immigrant visa petitions which increased the demand. This leaves many wondering what the impact of the retrogression is on their green card applications.

The CIS has instructed its service centers to continue to issue work authorizations for those EB-3 adjustment of status applications received on or before December 31, 2004 if the priority date is later than January 2002. The service centers will keep the adjustment of status applications on hold until the visa number becomes available (also known as the priority date becoming current). This typically impacts nurses and physical therapists whose immigrant visa and adjustment of status applications were filed between January 2002 and December 21, 2004 and are still pending at the CIS. Because there are no visa numbers available, the adjustment of status applications cannot be approved. They can be kept on hold and the benefits of work authorization and travel authorization can be issued to the applicants while they wait for the green card to be approved.

EB-3 applicants based on labor certifications filed after January 2002 will also have to wait. Some of these applicants were able to file their immigrant visa petitions and adjustment of status applications prior to December 31, 2004. As with the RNs, their cases are kept on hold and they are entitled to extensions of their work authorizations until their priority dates become current.

A large group of EB-3 workers, especially those sponsored in California are still waiting for their labor certifications to be approved. Many of these workers filed their labor certifications after January 2002. They must wait approval of the labor certification before an immigrant visa petition or adjustment of stats can be filed. For this group of people, only an immigrant visa petition can be filed for them. They will have to wait until their priority dates become current before they can file their adjustment of status applications. They are not entitled to work authorization. This also affects RNs and physical therapists who are being petitioned now. They will have to wait three years for a visa number.

For many it may mean having to return to their home country and wait for the number to become current. But, for some, the American Competitiveness in the 21st Century act provides that the CIS is authorized to extend the nonimmigrant status of these people if they have an approved immigrant visa petition and are waiting for a number to become available. This means that H-1B and L workers can extend their stay beyond their limits if they are waiting for an immigrant visa number.

For example, H-1B’s can only be issued for 6 years. Under some circumstances they can be extended for more than 6 years. If an H-1B worker received an approved labor certification, his immigrant visa was filed in January 2005, and approved in August 2005, he would be able to extend his H-1B status until the immigrant visa number became available beyond the 6th year.

The extensions of nonimmigrant status could only be granted to those categories that are allowed to have the dual intent of being a nonimmigrant and being an immigrant. Tourist, B-1/B-2 status and student F-1 status do not have dual intents. So, tourists and students cannot seek indefinite extensions based on their waiting for an EB-3 visa number to become available.

Many EB-3 applicants are wondering how PERM will affect the retrogression, especially those with labor certification cases still pending at the Department of Labor. A PERM filing will obtain a priority date near the end of the line. Only a very limited number of PERM cases will be able to retain priority dates that would put one near the front of the retrogression waiting list. Please consult an immigration attorney for further clarification on this.

For those EB-3 applicants overseas, unfortunately there is nothing that can be done other than wait for a visa number to become available. EB-3 applicants whose spouses are nationals of countries not subject to retrogression can still apply for their green cards at their home Consulate. For example a Filipino sponsored as an RN who is married to a Swiss national would be able to obtain the immigrant visa in Manila through something called cross-chargebility. Cross charging is where the visa number is taken from the pool of visas available to foreign spouse’s cap. In the previous example, the visa number would come from the Swiss numbers which are still current in the EB-3 category.

Patience will be required for most EB-3s. Unless, Congress issues additional visa numbers. Congress is being lobbied for more numbers and categories, and this column will post any changes in the numbers.