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Visa Retrogression – A Step Backwards in Immigration

1 Aug

With the exception of spouses, parents, and minor children of U.S. citizens, most foreign nationals wanting to obtain permanent residence in the United States are subject to quotas that govern the availability of immigrant visa numbers. These quotas are reflected in the Department of State’s monthly Visa Bulletin, which lists the dates before which a green card process must have been initiated in order to move forward with the last step of the process. Each of the various family-based and employment-based categories is assigned one of these “priority dates,” which can move forward (advance) or backward (retrogress) on a monthly basis depending on the level of demand in the particular category. If visa numbers are available to a given category immediately, that category is listed as “current” in the Visa Bulletin.

As we reported in our recent Immigration Update, the Visa Bulletin for August 2019 showed significant retrogression for four employment-based categories, including the three most-commonly-used categories – EB-1, EB-2, and EB-3. This means that applicants in those categories who were close to being able to move forward with the final stage of their green card processes will have to wait longer, and those whose categories were previously current (meaning that they could move forward with the final stage immediately) now have to wait like everyone else.

The Department of State explained that this nearly-across-the-board retrogression was due to a spike in demand. It didn’t provide specific details of the reasons behind the spike, but we speculate that there were two main drivers. First, the Trump Administration’s ongoing resistance even to legal immigration has made many interested parties fearful that future changes could impact their ability to obtain permanent residency, so both employers and employees have been motivated to push forward with their green card processes more quickly. This has resulted in a higher volume of pending processes relative to prior years. Second, the Department of Labor has recently begun processing PERM labor certifications more quickly, so those in the EB-2 and EB-3 categories have been able to advance to the next stage of their green card processes more quickly as well.

Regardless of the reasons, the fact is that the retrogression will put a temporary hold on many of these processes until at least October. That’s when the federal government’s new fiscal year starts, so that means the next year’s visa numbers will be available. It is certainly possible that priority dates will go back to their pre-August states, but there is unfortunately no guarantee that will happen. Last year, the EB-1 category retrogressed for all countries of birth for the first time, and it remains so to this day, despite hopes that there would be significant forward movement last October.

The current retrogression has certainly thrown a wrench in the plans of many employers and employees. Companies are scrambling to find non-immigrant backup plans to account for the longer wait times. Some foreign nationals are sure to be without good options to remain in the United States while their green card processes are pending, and the U.S. economy may lose those workers for good if they find it easier to immigrate elsewhere. Considering the fact that most of these workers are college-educated professionals, the impact on the American workforce could be significant.