Visa number retrogression

What is “visa number retrogression”?
To be eligible to apply for a green card, either in the United States through adjustment of status or overseas through consular processing, there must be a visa number available to you when you apply. Whether a visa number is available or not depends on the use of visas in your category and country and the rate at which green card applications are being processed by the government. Your place in line is determined by your priority date, usually the date your labor certification was filed with the U.S. Department of Labor (“DOL”) or, for those applications not requiring labor certification, the date a petition was filed with U.S. Citizenship and Immigration Services (“USCIS”). When more people apply in a certain category than there are visas available, the U.S. Department of State (“DOS”) establishes a cut-off date, which is the priority date of the first applicant who could not be issued a visa within the numerical limits. Visa numbers are available only to those applicants with priority dates before the cut-off date.

In December 2004, DOS determined that the visa demand for EB-3 category applicants (skilled and professional workers) from mainland China, India, and the Philippines exceeded the per-country numerical limits in that category. As a result, DOS set the cut-off date for EB-3 applicants from China, India, and the Philippines at January 1, 2002. This roll-back in priority dates is what is referred to as “visa number retrogression” (or regression). The effect is that applicants in the EB-3 preference category may not apply for (or receive) their green cards through adjustment of status at USCIS or through consular processing at a U.S. consulate abroad unless their priority date is before January 1, 2002.

How many employment-based visas are available each year and how are they distributed?
The number of employment-based immigrant visas available each year is set by law at a minimum of 140,000. Employment-based immigrant visas are divided into five categories, called “preferences.” The number of visas issued in each “preference” category is limited by annual and by per-country levels.

If visa numbers in any preference category remain unused in a given year, applicants in other preference category can use them. If the demand for visas in a particular category exceeds the allotment for that category, and there are no extras available from another preference category, the category is deemed “oversubscribed,” and any additional applicants in that category will have to wait in line.

Immigrant visas are also subject to a per-country limit, set at 7% of the total annual number of family- and employment-based visas, or 25,620 per country, divided proportionally among the preference categories. A visa applicant from a country that has already used up its annual number of visas may still receive a visa if there are excess employment-based visas available that are unused by other countries.

Why did the visa number retrogression happen?
In recent years, USCIS (and its predecessor, INS) had slowed down the processing of green card (I-485) applications, causing a substantial backlog of employment-based cases. This slow processing resulted in fewer immigrant visa numbers being used. In turn, this reduced use of immigrant visa numbers created the impression of visa availability in all employment-based categories. When USCIS began to address the backlog in 2004 by processing adjustment of status applications at a faster rate, however, these available immigrant visa numbers were used up quickly. Because so many visa numbers were quickly used up, there are fewer available, so the DOS had to set a limit on visa distribution in the EB-3 category.

Stated another way, the number of people waiting in line for EB-3 visas did not significantly increase; instead, the number of visas being issued recently increased and resulted in a shortfall for certain countries.

How does the visa number retrogression affect me if I have not yet applied for a green card?
You are only affected by the current retrogression if you are from mainland China, India, or the Philippines and wish obtain your green card through adjustment of status at USCIS (or consular processing at a U.S. consulate) based on an EB-3 petition. If you fall into this category, you may face a significant delay (possibly up to several years) before you can apply to adjust status and obtain your green card. Although you may still file your I-140 petition, you cannot file your I-485 green card application separately or through concurrent filing (or complete consular processing overseas) until an immigrant visa number is available. While you wait, your spouse and you will NOT be able to take advantage of benefits such as employment authorization and travel documents that are available when you file your visa petition and adjustment application concurrently. Although EB-3 is the only category currently affected, the EB-2 category is expected to retrogress for at least China and India some time this year.

I am from China, India, or the Philippines and had already filed my I-485 application for adjustment of status before the EB-3 retrogression. How will my application be handled by USCIS?
If you filed your I-485 (either alone or concurrently with your I-140) with USCIS by December 30, 2004, your application will continue to be processed (security checks, etc.), but it will not be approved upon completion of processing unless a visa number is available. In the meantime, you and your family will be allowed to remain in the United States and also remain eligible to apply for employment authorization and advance parole.

If I filed my I-485 adjustment of status application before the retrogression, can my family and I still get work authorization and advance parole?
If you already have an I-485 green card application pending (i.e., you happened to have filed before the visa numbers retrogressed), you can continue living and working in the United States. Also, while your I-485 applications remain pending, your family will continue to be eligible to file I-765 applications for work authorization and I-131 applications for advance parole, respectively. There may be other considerations, too, so you should plan carefully ahead of time and obtain competent legal advice on what you should do to stay in status and to continue to work and travel freely during the waiting period.

How quickly do visa numbers become available once a cut-off date is set?
It depends on the demand for immigrant visas and the combined rate at which USCIS approves adjustment of status applications in the United States and U.S. consular officers overseas approve immigrant visa applications. The DOS continually evaluates the availability of visa numbers issues monthly Visa Bulletins showing whether the cut-off date has moved ahead or backward.

I am from a China, India, or the Philippines and am on a nonimmigrant visa. I also have an approved labor certification and an approved I-140 petition. What options are available to allow me to stay in the United States until a visa number becomes available?
If you have an approved labor certification and a pending or approved visa petition, you may be able to extend or change your nonimmigrant status while waiting for an immigrant visa number to become available. Some of the nonimmigrant options include H-1 temporary worker visa, F-1 student visa, O-1 Alien of Extraordinary Ability visa, or L-1 Multinational Executive or Manager, or possibly other nonimmigrant categories. If you are in H-1B, for example, you may obtain a one-time extension of status if you have reached the 6-year limit and your only barrier to adjustment is the per-country limit. You might also be able to extend your H-1B visa if your labor certification or I-140 petition has been filed and has been pending for more than one year before you file for the beyond-6-years extension.

Can I bypass the EB-3 retrogression by doing consular processing overseas instead of filing an I-485 for adjustment of status in the United States?
No. USCIS and the U.S. consulates (part of the DOS) draw from the same pool of visas.

What are the alternatives to applying in the EB-3 category?
If you have already filed a labor certification or an I-140 petition based on the EB-3 category, you should also be aware of first-preference (EB-1) and second-preference (EB-2) categories that do not require a labor certification, such as Aliens of Extraordinary Ability (EB-1A), Outstanding Professors or Researchers (EB-1B), Multinational Executives or Managers (EB-1C), and National Interest Waiver (NIW). Another alternative is the EB-2 category for Professionals with Advanced Degrees, which does require labor certification, but allows you to obtain approval in the higher EB-2 preference category. A petition successfully filed under one of these categories might allow you and your family to get your green cards potentially several years faster than waiting in the EB-3 line. Not everyone qualifies for these other categories, though, so a careful review of your case is important. You can find more information about our free reviews for these types of cases on our Free Consultations page.

What will happen if I submit an I-485 adjustment of status application to USCIS before my priority date is current?
If submitted after December 30, 2004, your application will be rejected if a visa number is not available. If you file concurrently (both I-140 and I-485) with one fee, then both applications will be rejected. If you file concurrently with separate fees, only your I-485 will be rejected.

I am from China, India, or the Philippines and have a non-PERM (i.e., an RIR or “standard”) labor certification already pending at the state (SWA) or federal (DOL) level. Can I bypass the EB-3 visa retrogression by “converting” my RIR/standard labor certification to a PERM labor certification?
Maybe. The answer to this question is somewhat complex from a legal standpoint and the strategy depends very heavily on your specific circumstances. First, the question of whether to convert at all depends on several assumptions about contingencies and factors that may vary considerably. Second, there are several important risks in trying to convert. (The technicalities of the conversion process are discussed in more detail on our PERM Labor Certification page.)

This is what happens at the USCIS under “normal” circumstances and under “retrogressed” circumstances:

Step 1: Obtain labor certification approval from the Department of Labor (DOL).
Step 2 (Normal): Use concurrent filing procedures to simultaneously file the I-140 petition and I-485 application at USCIS.
Step 2&3 (Retrogression). If there are no immigrant visa numbers immediately available to your particular preference category and country at the time your labor certification application is approved, you must split Step 2 into two parts. First, you file the I-140 petition (because there is no quota on I-140 petitions), and then you have to wait for a visa number to become available before filing the I-485 application.
In analyzing whether converting your pending RIR or “standard” labor certification application to a PERM labor certification application will speed up your overall green card application process, keep in mind that your “priority date” (i.e., the date used for determining visa availability) is the date your labor certification application was filed. Your priority date is not the date the labor certification was “certified” (i.e., approved). Therefore, whether your labor certification application moves quickly or slowly, the date you filed your labor certification (i.e., your “priority date”) does not change. Successfully converting to PERM may therefore accomplish nothing for you. That is, it would be of little benefit to have your labor certification approved more quickly if doing so would only leave you standing on the dock to wait several more years for the immigrant visa ferry to return.

On the other hand, if you have a very old labor certification pending (especially one filed before the current visa cut-off date), then the immigrant visa ferry is already waiting for you at the dock, but your applications are still stuck in some warehouse somewhere else. In this instance, speeding up the labor certification process could be of great benefit to you, because doing so would not only put you on the dock but allow you to get right on to the immigrant visa ferry waiting there for you, so you could complete your green card processing either at the USCIS in the United States or at a U.S. consulate overseas. Also, if your family or you need some of the advantages of having an I-485 pending, such as eligibility to work or travel in and out of the country to visit family, attend scientific conferences, and so on, without having to stop at a consulate overseas for a new visa, a successful PERM conversion and approval of an old RIR “standard” labor certification application could be of additional value to you.

Ultimately, whether to attempt a PERM conversion or not clearly requires careful case-by-case analysis. A successful conversion could possibly move you forward several years, which could be a huge benefit to you and your family, but a failed conversion could potentially move you backward several years (or worse). The bottom line is that you need to understand the underlying risks before trying to “convert” or allowing someone else to try to convert your pending RIR or standard labor certification to PERM.