The path to securing a green card in the United States through employment-based visas is filled with complex processes, legal frameworks, and sometimes unexpected delays. One such challenge is retrogression, a phenomenon that affects many applicants waiting for their green cards. Understanding how retrogression works, its impact on timelines, and strategies for managing these delays is essential to successfully navigating the process. In this article, we will explore the concept of retrogression, its impact on wait times, and actionable steps applicants can take to effectively manage these challenges.
What is retrogression in the Visa Bulletin?
Retrogression refers to the backward movement of priority dates in the U.S. Department of State’s monthly Visa Bulletin. Each month, the Visa Bulletin lists the “final action dates” and “filing dates” for various categories of green cards, including employment-based visas. These dates indicate the earliest priority date an applicant must have for his or her green card application to move forward.
Backlogs occur when the demand for visas in a particular category exceeds the annual quota allotted by law, forcing the cutoff dates to move backward. For example, if the number of applicants in the EB-2 (employment-based second preference) category from a particular country exceeds the number of visas available, the priority date in that category may retrogress, meaning that only applicants with earlier filing dates can move forward. This unexpected shift can cause delays for those who thought they were close to receiving their green cards.
How the Visa Bulletin works
The Visa Bulletin is an important document published monthly by the U.S. Department of State. It provides a snapshot of the availability of immigrant visas (green cards) for family-based and employment-based categories. Each employment-based category-EB-1, EB-2, EB-3, etc.-has a set number of visas allocated annually, with further limits per country.
Priority Dates Explained
A priority date is assigned when an applicant files a labor certification or an I-140 petition with U.S. Citizenship and Immigration Services (USCIS). This date serves as a placeholder in the queue and determines when the applicant can proceed to the next step in the green card process.
If the applicant’s priority date is earlier than the date listed in the Visa Bulletin (either the final action date or the filing date), the application can proceed. If the priority date is not current, the applicant must wait, sometimes for months or even years. When regression occurs, applicants who were expecting to move forward may suddenly find that their priority dates are no longer current, putting their cases on hold.
Employment-based visa categories affected by retrogression
Retrogression often affects employment-based visa categories, especially for applicants from high-demand countries such as India, China, and the Philippines. These categories include
- EB-1: Priority workers with extraordinary ability, distinguished professors or researchers, and multinational executives.
- EB-2: Professionals with advanced degrees or extraordinary ability.
- EB-3: Skilled workers, professionals, and laborers.
The limited annual quotas, combined with the high volume of applications from certain countries, contribute to backlogs within these categories. When a category regresses, even applicants who originally had a current priority date may have to wait longer.
Effect of retrogression on wait times
Retrogression can cause significant disruptions in green card processing times. For applicants, it means more waiting, uncertainty, and the potential need to repeatedly renew temporary work permits and visas. Here are some key ways that backlogs affect wait times and employment stability:
Lengthening Green Card Wait Times
Retrogression can push back the timeline for final green card approval by several months or even years. For example, if an applicant from India in the EB-2 category has a priority date that was originally current in October, but the November Visa Bulletin shows retrogression, the applicant’s case may not move forward until his or her priority date becomes current again.
Temporary work visa extensions
Many employment-based visa applicants work in the U.S. on temporary visas such as the H-1B. When backlogs occur, these individuals often need to extend their non-immigrant status, such as H-1B or L-1 visas, while waiting for their green cards. This extension process can become burdensome, requiring repeated applications and increased legal fees.
Impact on Family Members
Dependents of employment-based visa applicants, often on H-4 or L-2 visas, may also experience difficulties. Spouses may face delays in obtaining work authorization, and children nearing 21 may be at risk of “aging out” of eligibility for derivative green card benefits. Retrogression thus affects not only the principal petitioner, but also his or her entire family.
Uncertainty for employers and applicants
Rollback creates uncertainty for both employers and applicants. Employers sponsoring green cards may face disruptions as they wait longer for employees to become permanent residents, which may affect workforce planning. Meanwhile, applicants face extended periods of uncertainty that can affect their personal and professional decisions.
Strategies for managing backlogs and delays
While retrogression can be frustrating, applicants can take proactive steps to manage the delays and keep their green card process on track. Here are some strategies to consider:
Monitor the Visa Bulletin Regularly
Applicants and their attorneys should closely monitor the Visa Bulletin each month to stay informed of any changes in priority dates. Knowing when a retrogression occurs allows applicants to adjust their plans and take necessary actions, such as renewing temporary work visas in advance or preparing documents for when their priority date becomes current again.
File Adjustment of Status (AOS) as early as possible
In some cases, applicants may be eligible to file for Adjustment of Status (AOS) if their priority date is current according to the “Dates for Filing” table in the Visa Bulletin. Filing AOS early allows them to secure work authorization and advance parole, which allows them to travel while their green card application is pending.
Consider Employment Category Porting
Applicants in certain employment-based categories may benefit from porting to another category to reduce wait times. For example, an individual in the EB-3 category may be eligible to port his or her petition to the EB-2 category if he or she obtains an advanced degree or gains additional work experience. Porting can improve the chances of obtaining a green card more quickly if the new category has a more favorable cutoff date.
Maintain temporary work visa status
Given the unpredictability of backlogs, applicants should ensure that their temporary work visas (such as H-1B or L-1) remain valid. Staying on top of renewals and extensions will ensure uninterrupted employment and legal status in the U.S. until the green card is issued.
Explore Cross Eligibility
If the applicant’s spouse was born in another country with a less severe backlog, cross-chargeability may be a helpful strategy. This rule allows applicants to charge their green card application to their spouse’s country of birth, which can result in shorter wait times.
Seeking Legal Assistance for Complex Cases
Given the complexities of retrogression, consulting with an experienced immigration attorney can be invaluable. Attorneys can provide tailored advice, suggest alternative immigration options, and help navigate issues such as employment category porting or cross-charging.
Plan for family members
Applicants with children approaching age 21 should take steps to avoid “aging out” problems. The Child Status Protection Act (CSPA) may provide some relief by fixing the child’s age under certain conditions, but careful planning is required. Families should also consider renewing dependent visas and work permits to maintain stability.
Conclusion
Backlogs are an inherent part of the U.S. immigration system, driven by the interplay of high demand and limited visa quotas. For employment-based visa applicants, this phenomenon can lead to unexpected delays and significant uncertainty. However, by understanding how retrogression works and adopting proactive strategies, applicants can better manage the challenges it presents. Regularly monitoring the Visa Bulletin, maintaining temporary visa status, exploring porting options, and seeking professional legal advice are all essential steps to effectively navigating the retrogression process.
While retrogression can be discouraging, perseverance and careful planning can help applicants stay on course toward their ultimate goal: securing permanent residency in the United States.
