Employment-Based Green Card Priority Date Retrogression – General Immigration

The U.S. Department of State (“DOS”) may retrogress
employment-based immigrant visa categories (a.k.a. “green
cards”) when there is a higher number of green card filings
than the number of available green cards. Due to retrogression,
many individuals will be unable to commence and/or complete the
last stage of the green card process (namely the adjustment of
status process (“AOS”) if completed in the United States
or consular processing if completed overseas) for many years until
their priority dates become current.

Every year, the government is allowed to issue approximately
140,000 employment-based green cards plus any unused
family-sponsored numbers from the previous fiscal year. Each EB-1,
EB-2, and EB-3 immigrant visa category receives 28.6% of the total
annual limit, and each EB-4 and EB-5 category receives 7.1% of the
total annual limit.

Demand for employment-based green cards from nationals of
certain countries (primarily China and India) may also exceed the
per-country limits on availability. No country is allowed to
receive more than 7% of the overall immigrant visas.

When an employer files a PERM Labor Certification Application
with the U.S. Department of Labor (“DOL”), the date on
which the Application is received by the DOL is the
individual’s priority date. If the individual is exempt from
the labor certification process, the date on which the U.S.
Citizenship and Immigration Services (“USCIS”) receives
the Immigrant Petition for Alien Worker (Form I-140) is the
individual’s priority date.

In addition to the priority dates, individuals have to determine
their country of chargeability in order to determine which priority
date on the DOS’ monthly Visa Bulletin applies to them. For
most individuals, country of chargeability is based on the country
of birth, not the country of citizenship. For example, a foreign
national who is born in India and has subsequently become a citizen
of Canada is still chargeable to the priority date for Indian
nationals. A limited exception does apply for individuals who are
married to a spouse who was born in a country different than the
principal’s country of birth.

The DOS has, in many instances, retrogressed the
employment-based immigrant visa categories from month to month as
quickly as it has advanced the categories. For example, the DOS has
retrogressed the EB-3 category in the past. On the other hand, the
DOS has rapidly advanced the EB-2 category. Thus, there is very
little consistency in the advancement or retrogression of the
employment-based categories. Additionally, the DOS consistently
cautions that any future priority date movement may be slow or be
sporadic until the number of and priority dates of pending older
cases can be determined. Unfortunately, it appears that the USCIS
is not able to provide complete information to the DOS about its
AOS backlog. Therefore, DOS has to estimate the outstanding cases
requiring immigrant visas and their priority dates. This has led to
the current unpredictability in the priority date system.

Each month, the DOS updates the available Filing priority dates
and the Final Action priority dates at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html.
When a individual’s Filing priority date becomes available,
he/she will be able to file an AOS application with the USCIS if
he/she is present in the United States and eligible to file for
AOS. If the individual is not residing in the United States or is
not eligible to file for AOS, he/she may commence the consular
processing procedure through the DOS. The individual will only be
able to complete the AOS or consular processing procedure after
his/her Final Action priority date becomes available.

An individual who files for AOS is eligible to apply for an
Employment Authorization Document (EAD) and/or Advanced Parole (AP)
travel document. If the individual’s priority date retrogresses
while the AOS application is pending, he/she will not be able to
complete the AOS process until his/her Final Action priority date
becomes available. However, during this time, while he/she is
waiting for his/her priority date to become available, he/she will
be able to continue to extend his/her EAD and AP documents.
Additionally, if his/her AOS application has been pending for more
than six months and his/her Form I-140 has been approved, his/her
green card process may be portable so that he/she may commence
employment in the same or similar occupation as the original offer
with a new employer without the abandoning the green card
process.

Additional information about priority date movement or
retrogression will be contained in the monthly Masuda Funai
Business Immigration Updates when it becomes available.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.