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Visa Number Retrogression: Tough Times Continue for US Employers
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The U.S. Citizenship and Immigration Service (USCIS) has given more than one rude shock to U.S. employers and foreign national workers in the last two months. The unprecedented rate at which H-1B visas were used up caught U.S. employers by surprise in August 2005. In September 2005, the U.S. Department of State (DOS) released the Visa Bulletin for the month of October 2005 which reflects widespread ‘retrogression’ in most of the employment-based (EB) immigrant visa categories, affecting individuals from China and India in particular. It is essential to understand the concept of ‘visa number’ and ‘retrogression’, as they have a huge impact on the employment-based green card process and long-term immigration strategy.

What is my ‘priority date’ and what is a ‘visa number’?

To be eligible to apply for a green card, either in the U.S. through adjustment of status or overseas through consular processing, there must be a ‘visa number’ available. Whether a visa number is available depends on your ‘priority date’. Each permanent resident petition is assigned a priority date upon filing. For family based and certain employment-based cases that date is the date the petition is received by the USCIS. For cases involving labor certification it is the date the labor certification application is filed. The number of visas available each year in a particular immigrant category is set by the Immigration and Nationality Act. Whether a visa number is available in a particular category depends on the demand for visas in that particular category, the country the beneficiary is from, and the rate at which green card applications are being processed by the government.

The U.S. Department of State (DOS) acts as the regulatory authority to ensure that the number of visas issued every year do not exceed the statutory limit. This is done by limiting the number of visas issued in each immigrant preference category each month. The DOS issues the Visa Bulletin - a monthly update on the priority dates being processed for visas in the various family and employment-based immigrant visa categories. When the DOS anticipates that the demand for an immigrant visa category may lead to too many visas being issued, it imposes a cut-off date based on the priority date of the pending petitions. A beneficiary is eligible to adjust status or to be issued an immigrant visa only if he/she has a priority date on or before the date listed in the Visa Bulletin. To view the latest Visa Bulletin, click here.

What is visa number ‘retrogression’ and why does it happen?

‘Retrogression’ occurs when a cut-off date established by the DOS moves backwards or when visas in a particular category become completely unavailable. Earlier, due to lengthy procedures for labor certifications through the Department of Labor (DOL) and severe processing delays at the USCIS, a substantial backlog occurred for employment-based petitions and, consequently, fewer immigrant visa numbers were utilized. However, in the recent years, with the successful backlog reduction efforts of both the USCIS and DOL, and the advent of PERM, the processing backlogs have been reduced significantly. This has resulted in the expeditious approval of immigrant visa petitions and an increase in the demand for visa numbers. Since the demand for visa numbers is anticipated to exceed the number of visas available annually, the DOS has begun to establish priority date cut-offs for most of the employment-based visa categories.

How does ‘retrogression’ affect my green card application?

The most immediate impact of retrogression is that the beneficiary of an approved I-140 petition may have to wait for his or her priority date to become current in order to start the adjustment of status process, and consequently, obtain employment authorization. Foreign nationals currently living abroad will have to wait for their priority date to become current to receive an immigrant visa. Their visa petitions will be kept on hold until their priority date becomes current. For example, as of October 1, 2005, the cut-off date in the EB-1 category for nationals of India is August 1, 2002. This means that as of October 1, an Indian national who is a beneficiary of an approved I-140 petition but with a priority date of August 1, 2002 or later cannot apply for adjustment of status because his/her priority date is not current.

What is the possibility of further retrogression?

As of October 1, 2005, cut-off dates have been established for EB-1 and EB-2 categories for nationals of India and China. The priority dates depend upon the demand and supply of immigrant visas. The demand for these visas, particularly the EB-3 category, continues to be high. However, the supply of the visas is limited because the number of visas for each category to be issued in a particular year cannot exceed the statutory limit. If the demand for the employment-based green cards continues to be more than the supply, there may be further retrogression of the priority dates and visas may also become unavailable for nationals of certain countries.

Hence employers wishing to start the permanent residency process for their employees who are not currently subject to the cut-off dates must act fast before the categories retrogress further. It is also critical that individuals with approved I-140 petitions for whom the immigrant visa numbers are currently available file their applications for Adjustment of Status as soon as possible, to become eligible for applying for Employment Authorization and/or Advance Parole.

Will upgrading my labor certification to PERM affect my priority date?

Although the Visa Bulletin for October 2005 indicates that the forward movement of the cut-off dates may be "limited", the actual progress will depend upon how fast the USCIS and DOL continue to eliminate the backlog. In this current climate, preserving one's existing priority date becomes extremely critical. Though the law provides for portability of employment-based immigrant visa petition approvals to a different employer under certain circumstances, the rules governing the preservation of one's priority date are complicated. Further, individuals seeking to upgrade their labor certification applications to PERM process must also obtain proper legal advice as they may risk losing their current priority date.

Can I change my country of chargeability?

When a permanent resident applicant is subject to a quota waiting list, but is the spouse or child of a person born in a country with a more favorable quota, the applicant may request the DOS to “charge” their visa to that other country. This “cross-chargeability” allows the beneficiary to take advantage of the more favorable quota. For example, as of October 1, 2005 the EB-2 priority date for nationals of India is November 1, 1999 but it is current for German nationals. Thus an Indian national with an EB-2 priority date later than the current cut-off date of November 1, 1999, married to a German national can still apply for adjustment of status by cross charging his application to his spouse's country of nationality. However, there are certain exceptions and peculiar conditions for the cross-chargeability rule and we suggest you should seek legal advice before arriving at a decision.

How can I avoid retrogression or continue to stay in US?

With the retrogression of the priority dates for employment-based visa categories, foreign national employees must pay careful attention to planning their permanent residence process. Those facing many years of waiting for a priority date to become current must plan how they will be able to remain legally in the U.S. throughout the process. Individuals in H-1B status who have commenced the green card process before they reach their fifth year in H-1B classification and whose green card process is pending, may be able to extend their H-1Bs beyond the six-year limit by using the provisions of AC-21 ("The American Competitiveness in the 21st Century Act of 2000").

Foreign nationals on L-1 visas and certain other time limited visas do not have the privilege of extending their stay beyond the maximum limit even if they have already commenced the green card process. Such individuals, who may have to wait for many years for their priority date to become current, may explore the option of changing their status to H-1B visa as soon as it becomes available. These individuals should also consider changing to one of the visa categories that do not have the time limitations. These would include the TN (for Canadian and Mexican workers), the E-1 or E-2 for employees of foreign owned companies from countries with treaties with the U.S., the E-3 for Australian professionals, the H-1B1 for certain workers in specialty occupations from Singapore and Chile, and the O-1 visa for persons of extraordinary ability. This may help them prolong their stay in the US to continue working for their existing employers while waiting for their priority dates to become current.

Conclusion


While the backlog reduction efforts of USCIS and DOL and the new PERM process for Labor Certifications have received much commendation from all corners, the paradoxical result of this increased efficiency is that many foreign nationals will have to wait for many years to receive the coveted American Green Card.

Keeping the complex nature of green cards in mind we advise our readers and clients to consult a VisaPro attorney.

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