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#ioimmigration Conversation

Thoughts and ideas from mattenlaw
The Visa Bulletin and Visa Retrogression
January 23, 2019 at 12:00 AM
by mattenlaw
man talking in the meeting about visa retrogression

Will it really take 150 years for me to get my green card? 

What is Visa Retrogression? 

If you are asking these question, you are likely wanting to know how long will it take to get a green card.

Let’s start with the basics.

Numerical Limits and Per-Country Limits = Quotas

Each applicant for US lawful permanent residence (“LPR” or “green card”), whether applying based on a family member or based on employment, must have a visa number available in order to finalize the green card process. This is the basis of the quota system.

In order to prioritize the applicants, there are three main concepts:

  1. Preference Category
  2. Counry of Chargeability
  3. Priority Date

Preference Category

Within each broad category of family or employment, there are sub-categories to prioritize applicants as follows:

Immediate relatives: Spouses, children (under age 21) and parents of US citizens. There is no numerical limitation (“quota”) for this group.

  • F1: Unmarried sons and daughters of US Citizens over age 21
  • F2a: Spouse of LPR
  • F2b: Child (under age 21) of LPR
  • F3: Married sons and daughters of US Citizens over age 21
  • F4: Brothers and Sisters of US Citizens

Employment categories prioritize individuals who are leaders in their field.

  • E1: Priority Workers who are either: 
    • (A) Aliens of extraordinary ability; 
    • (B) Outstanding researchers and professors; or 
    • (C) Multinational Managers and Executives
  • E2: Members of the professions holding advanced degrees or those with exceptional ability
  • E3: Members of the professions, skilled workers and other workers
  • E4: Special immigrants including religious workers
  • E5: Employment creation = “Million Dollar Investor”

Priority Date

The priority date establishes the applicant’s place in the queue for an immigrant visa or “green card”. An applicant wants the earliest possible priority date to be as close as possible to “the front of the line”.

For family-based (“FB”) cases, the priority date is the I-130 filing date . 

For employment-based (“EB”) cases, the priority date is as follows:

  • EB-1: The I-140 filing date;
  • EB-2 – EB-3: The earlier of the PERM (if applicable) or I-140 filing date;
  • EB-4: The I-360 filing date;
  • EB-5: The I-526 filing date.

Country of Chargeability

This is the country of birth of the applicant. You may also be “cross charged” to your spouse’s country of birth.

How does the visa bulletin work? What if a category has “leftover” visas?

Unlike in the H-1B context, there is a not a set visa “cap” or quota for each preference category. Rather each category begins with an initial allotment of the overall pool of visas. To ensure first preference has priority and to ensure the maximum number of visas are used in a given fiscal year, there is a cascading system. 

For family categories, any unused FB-4 visas become available to FB-1; any unused FB-1 visas become available to FB-2; any unused FB-2 visas become available to FB-3; and, any unused FB-3 visas become available to FB-4. 

For employment categories, any unused EB-4 and EB-5 visa become available to EB-1; any unused EB-1 visas become available to EB-2; and, any unused EB-2 visas become available to EB-3.

Dates for Filing vs. Final Action Date

The Department of State created a system to ensure the “pipeline” of applicants is sufficient to exhaust all available immigrant visas in a fiscal year. The “Dates for Filing” chart allows individuals to file an application with the USCIS to put their Adjustment of Status (Form I-485) into queue, but the USCIS cannot make a final determination until a visa number is available as indicated by the “Final Action Date” chart. Once a Form I-485 is submitted, the applicant will remain eligible for an employment authorization document (EAD) and travel document (Advance Parole) even if the visa bulletin cutoff date later goes to a date prior to the applicant’s priority date.

Should I upgrade to EB-2 or downgrade to EB-3?

There are two moving targets: (1) the visa bulletin dates for the month you are filing the I-485; and (2) the visa bulletin dates for the month your I-485 will be ready for final action by the USCIS. And for most applicants in the employment context, this all assumes you already have an approved PERM. The second target is the most important one for most applicants which is why many Indians and Chinese applicants consider an EB-3 downgrade. But you have to “be in the game to play”, so in most cases, it is still advisable to pursue a PERM that supports EB-2 if possible. Each case is unique and very fact specific. If you would like an assessment, please contact us.