Visa Retrogression – Why has My Employment Based Visa Gotten Delayed?

For employment-based applicants one of the most important parts of the process is the establishment of a priority date.  This date is set with the filing of the Labor Certification (ETA 9089) with the Department of Labor (DOL), if required, or the filing of the Immigrant Visa Petition (Form I-140) with the U.S. Citizenship and Immigration Service (USCIS).  This date determines when the beneficiary will be eligible to receive their permanent residence – green card, based on their country of birth.

Historically there are times when visas are current and when they ‘retrogress’ and/or become unavailable. The U.S. Department of State is the body responsible for the counting and issuance of visas. They provide a monthly report which outlines visa availability based on priority dates. These reports are available at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html. Visas are divided and allotted by specific ‘over-subscribed’ counties, including Mexico, India, China, Philippines, Vietnam and El Salvador, Guatemala and Honduras, as well as the remaining countries catchall where the rest of the visas are all counted as one remaining category.

Historically, visas in the highest qualification category (Employment-based First Preference or EB-1) are available for immediate issuance. For fiscal year 2019, however, EB-1 retrogressed and has not become current this year. The second preference category, while mostly available, fluctuates but is commonly is more used than the first. Third preference is even more used than both the first and second and sees more usual retrogression.

To complicate matters further, the USCIS is charged with determining if it will use the dates for filing or the final action dates that are issued each month by the DOS.  For both August and September USCIS has determined that it will use the final action date chart which functionally puts a stop to any filings that do not have a priority date at or before the dates on the final action chart.

Beginning in August 2019, visas in all three of the most used categories (EB-1, EB-2, and EB-3) retrogressed.  This is the Final Action Dates for Employment-Based Preference Categories for August.

For September 2019, some categories moved ahead while others continued a backward progress. This is the Final Action Dates for Employment-Based Preference Categories for September.

What does this all mean?  For those who have already filed their Adjustment of Status applications (Form I-485) with the USCIS, their applications will be held for final adjudication based on the coming availability of the visa.  That is, until the date reaches or passes their priority date there will be no finalization or issuance of their permanent residence – green card.  However, it is possible to obtain and keep employment and travel authorization for the period that the application remains pending. For those who had yet to file their Adjustment of Status applications, they will be unable to do so until their priority date becomes current – that is the date on the visa bulletin is at or after their priority date for their country of birth.  If an individual tries to file their Adjustment of Status application and the date is not current, it will be rejected.  Further, for those who have not even taken the first step towards their permanent residence, this development has implications.

If you have questions as to how this situation affects you, please contact Joseph & Hall P.C. and we will be happy to review your particular situation.