Employment-Based Visa Retrogression - How Does It Effect You?

Cause-effect is defined by Webster's dictionary as, "the concept that an action or event will produce a certain response to the action in the form of another event." The State Department has taken action upon the enormous backlogs throughout the system and has effectively made a once stagnant process, a process that moves at an efficient rate. With one problem solved, another problem is faced. Due to the improved processing at the USCIS and the Department of Labor more labor certification and visa petitions have been approved, and therefore more adjustment of status applications have been granted and visa numbers are becoming very limited. This issue is not projected to get any better in the coming years. The State Department has provided some statistical data into the future visa numbers available: FY2005-249,000; FY2006-156,000; and FY2007-148,000.

Persons filed in the EB3 category have been the most effected by the retrogressions, but all categories may be affected in the future. The EB2 category is current at this time with the exception of India and China. It is projected that the EB2 category may retrogress during the second quarter of the FY2006 for all countries, and a cut off date may be implemented in the third or fourth quarter of FY2006.

Many have asked, how will this retrogression affect my pending I-485 application? The processing is completed in the order of priority date. The priority date is the date that your Labor Certification application was accepted for processing and this determines where you stand in the line of processing. Cases that are already filed and being worked on by the USCIS may still be processed, but an approval could not be issued until your priority date becomes current. Similarly, if your I140 is pending or approved, an I485 application cannot be filed on your behalf until the priority date becomes current. In many cases this could take several years.

On the bright side, an applicant will be able to obtain a 3 year extension on the H1B & H4 visas if the I140 is approved and retrogression is still in effect. Spouses however on H4 will be unable to work, as the EAD cannot be filed until filing of the I485. If a 485 has already been filed on your behalf, but is now subject to the retrogression, you will be able to obtain EAD for you and your dependants until the 485 is processed. If you are the main applicant, but the case included a spouse that was born in a country that still has available visa numbers, you could file 485 through your spouse's birth country.

Immigration laws are constantly changing, and cause-effect becomes a major issue when looking into the positives and negatives of each change. Staying current and up to date is important when making long term future plans and goals. We will continue to research and update you on retrogression as new information is released. To find out specifically how retrogression may effect your immigration status, please contact our office to discuss with an attorney.