Visa Retrogression & How Does It Apply to EB2 Visa Green Card Applicants

The U.S. government makes only a certain number of immigrant visas (green cards) available each year and these are allocated among the various immigrant visa categories and countries from which applicants seek to immigrate. For the past few years, the number of immigrants approved for employment-based immigrant visas has been lower than the number of visas available, resulting in no backlog in visa numbers. Recently, the DOS has seen far more immigrants approved for employment-based immigrant visas and has run out of visa numbers in certain categories, causing a temporary backlog or “retrogression” of visa numbers.

When worldwide demand for employment based visas exceeds worldwide availability, immigrant visa numbers are further apportioned among the various countries from which applicants seek to emigrate. Each country has a limit and each approved applicant is “charged” against his or her country’s limit. Most countries have fewer applicants than available visa numbers. However, certain high-immigration countries often meet or exceed their chargeability limit. These countries include China, India, Mexico, and the Philippines.

Please note that for chargeability purposes, a person’s country of birth controls. A person cannot claim country of citizenship for retrogression purposes. For instance if applicant A is born in India, but possesses Canadian citizenship, applicant A will be unable to adjust status (based on EB1 or EB2) until visa numbers for India become current.

In addition, please note that a spouse can take on their spouse’s country of birth for retrogression purposes. For example, applicant A is a national of Bangladesh and applicant A’s spouse is a national of India. Applicant A’s spouse WILL be able to adjust status even though he or she was born in India because he or she can take on applicant A’s country of birth for retrogression purposes.

Immigrant visa numbers are given out according to a “first come, first serve” policy. The date an applicant first begins the green card process (often a Labor Certification Application filed with the U.S. Department of Labor or an I-140 or I-130 Petition filed with the U.S. Citizenship and Immigration Services) becomes that person’s priority date, which will determine the order in which that person will receive a visa number and thus be further processed for an immigrant visa or adjusted to immigrant status. When a retrogression occurs in visa numbers, applicants will have to “wait in line” until their priority date becomes current before they can be adjusted or receive an immigrant visa.

A visa number retrogression means that EB1, EB2 or EB3 applicants from certain high-immigration countries will not be able to apply for an immigrant visa (by filing an I-485 or through Consular processing) until a visa number becomes available for their priority date.

Supply and Demand for Visas

Visa number availability is determined by using a simple formula of supply and demand.
Each fiscal year (October 1-September 30), DOS reviews the demand for the above referenced classifications and per-country limits. If DOS finds that the demand for any of the above classifications is too high and that they do not have enough supply, they pull back the ‘priority dates’ of the visas in order to ride the wave of demand and ensure that supply is not exceeded. By pulling back the priority dates, DOS is able to regulate the flow of these visas. If the demand for a certain preference classification is too high, the visa will retrogress and will not become available until the priority date for that classification has been reached.

For instance, according to the immigrant visa bulletin that was just released for February 2008, the visa numbers for nationals of India in the EB2 category have become completely unavailable. This means that a person who filed an I-140 immigrant visa petition in the classification of EB2 category, after cannot file an adjustment of status (or consular process) until their priority date becomes current.

It is important to note however, that these priority dates are subject to change during the fiscal year. It is entirely possible that visa numbers in the EB2 category for Indian nationals could suddenly become current a few months from now or that the priority date could be reestablished. The reason for this is that the DOS is making an assessment based on what they believe will be the demand for these types of visas. It is their way of ‘testing the waters’ of demand. If a month from now, DOS reviews the demand for these visas and finds that it is not what they believed it would be, they will establish a priority date.

Consequently, if the demand is as high as first believed, they will keep the category ‘unavailable’. Right now, DOS is taking a very conservative approach to meet the their perception of demand and they will reassess their position on a monthly basis as the year moves forward. This is simply a regulatory mechanism where by DOS can control the number of visas issued in any given year to ensure that the demand does not exceed the supply.


Guest Author
Stephen Jeffries
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