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

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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

Other Types of Work Visas

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We focus a lot on the H1B, E3, J1, F1, H2B and L1 visas (as well as spousal/dependent equivalents) in this blog but today I will briefly touch on a couple of them being the Employment Based Permant residency EB visas and the O1 visa.

So firstly the O1 visa;
The O visa was created for individuals of extraordinary abilities that would be of great benefit to the US.
So for example this is often used by famous entertainers, actors, athletes when they are competing in tournaments, etc. It is also used by people distinguished in other fields like business, science and education.

To qualify for this visa you must still be sponsored by a US employer or agent but also demonstrate your recognized extraordinary abilities. If you are a famous author you could do this by your book sales, a scientist could do this from world awards they have won, an athlete can point to their world ranking, etc.

Essentially you have to be in top 1-2% in your chosen profession in the world. So of course very few qualify for this visa category. The O2 visa applies to support people specifically for entertainers and athletes. So this could be crew members, agents, etc. whose primary job is working for the O1 holder in some capacity.

The O3 visa is a dependent visa for O1 holders so spouses and qualifying children would get this visa.

The EB Visas (this is essentially a green card)
You can  occasionally apply for these visas directly before being on any other visa but there is a very limited supply. Generally this is the perment residency applied for on your behalf by your employer. You have to wait for a visa number to become available and this can take many years depending on your category and country of residence.
More often than not this will happen after an employer is satisfied with you on your H1B, L1 or E3 visa.

There are five categories of employment based immigration:

  • First Preference (EB-1 priority workers): aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
  • Second Preference (EB-2 workers with advanced degrees or exceptional ability): aliens who are members of the professions holding advanced degrees or their equivalent and aliens who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
  • Third Preference (EB-3 professionals, skilled workers, and other workers): aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
  • Fourth Preference (EB-4 special workers such as those in a religious occupation or vocation): aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
  • Fifth Preference (EB-5 Investment/Employment Creation) If you would like to be granted immigrant status in the United States for the purpose of engaging in a new commercial enterprise,
  • There is also Schedule A Workers whom are Health care workers and aliens of exceptional ability.

I hope this help provides some context as to other types of visa.

Till Next Time….

CJ