Priority Date Retrogression: Visa Office Update

Contributed by Jacqueline Lentini McCullough

On June 19, 2012, Charlie Oppenheim of the U.S. Department of State’s Visa Office predicted the visa demand in the employment preference categories for fiscal year 2013 and beyond. This month (July 2012) shows a backlog of the EB-2 “All chargeability areas Except those Listed” category for the first time since July 2007. This category includes foreign nationals from most countries, except for China, India, Mexico and the Philippines. Applicants from China, India, Mexico and the Philippines are listed out separately due to high annual demand. Foreign nationals, particularly from China and India, will be waiting years for adjudication of their I-485 Applications to Adjust Status (“green cards”). Mr. Oppenheim’s office seeks to allocate 13,500 immigrant visas per quarter across the employment based preference categories. The Visa Office already has more than 17,000 immigrant visas in line for FY2013.

Since 2005, there has been a significant increase in the backlog of employment based green cards as the demand began to exceed the annual supply of immigrant visas due to backlog reduction programs at both U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor. The backlog (“retrogression”) was not predicted, and its severity caught many by surprise.

As background, Section 203 of the Immigration and Nationality Act (INA) creates the parameters on how many green cards are available during the USCIS fiscal year in all visa categories. The fiscal year runs from October 1st through September 30th. In the employment based area, nationals of each country may obtain immigrant visas in a preference category, such as EB-1, EB-2, and EB-3. EB-1 means the First Employment Based Preference category and includes the following: (1) persons with extraordinary ability in the arts, sciences, education and athletics; (2) outstanding professors and researchers; and (3) multi-national executives and managers. EB-2 refers to the Employment-Based Second Preference Category including the following: (1) members of the professions holding advance degrees (Master’s or Ph.D.); and (2) persons of exceptional ability in the sciences, art or business. The Employment Based Third Preference category (EB-3) includes professionals and skilled workers (Bachelor’s degree or two years of training.)

In the future, significant delays in green card processing for most foreign nationals are likely, especially for applicants from China and India. If you have questions regarding the employment based retrogression, contact your labor and employment attorney.