47 Questions & Answers About Visa Retrogression

47 Questions & Answers About Visa Retrogression

May 13, 2019

By: Robert Blanco, Esq. & Bernard Wolfsdorf, Esq.

1. WHAT IS THE “QUOTA BACKLOG”?

The Immigration and Nationality Act sets limits on how many immigrant visas (green cards) may be issued each Fiscal Year (October 1 through September 30) in all visa categories.  In addition, in the employment-based area where immigration is based on employment and not family relationships, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3, EB-4, or EB-5). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually.  If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created, and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date.”  The priority date is the single, most important, factor in any immigration case. 

2. WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?

  • Employment-Based First Preference (EB-1)
  • Employment-Based Second Preference (EB-2)
  • Employment-Based Third Preference (EB-3)
  • Other Workers
  • Employment-Based Fourth Preference (EB-4)
  • Employment-Based Fifth Preference (EB-5)

3. WHAT DOES EB-1 MEAN?

Employment-Based First Preference (EB-1) includes:  (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers. 

4. WHAT DOES EB-2 MEAN?

Employment-Based Second Preference (EB-2) includes:  (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an

EB-2, rather it is the company’s minimum job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business.  Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected. The EB-2 category includes National Interest Waiver petitions.

5. WHAT DOES EB-3 MEAN?

 Employment-Based Third Preference (EB-3) includes:  (1) Professionals and skilled workers (bachelor’s degree or two years of training).  The position must require a minimum of a bachelor degree or two years of training.

6. WHAT DOES “OTHER WORKERS” MEAN?

Other Workers includes positions that require less than two years of experience.

7. WHAT DOES EB-4 MEAN?

Employment-Based Fourth Preference (EB-4) includes certain religious workers and other special immigrant categories.

8. WHAT DOES EB-5 MEAN?

Employment-Based Fifth Preference (EB-5) includes immigrant investors who have made a qualifying investment of at least $500,000 or $1,000,000 which created 10 full-time jobs for U.S. workers.  Applicants receive a conditional green card for 2 years, after which they must file a second petition with proof that the investment was sustained, and the jobs were created in order to remove the conditions. * Click here for additional information on the EB-5 wait line update.

9. WHAT IS THE “PRIORITY DATE”?

If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the Department of Labor. If your category is employment-based but does not require a labor certification, then the priority date is established on the date USCIS receives the I-140 or I-526 Immigrant Visa Petition.  However, the priority date does not attach to your case until the I-140 or I-526 has been approved.

10. WHY IS THE PRIORITY DATE IMPORTANT?

In order for an individual to obtain an immigrant visa, a visa number must be available. This is referred to as the priority date being “current.” The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the Department of State’s monthly Visa Bulletin, which is accessible at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the Department of State (“DOS”) each month.

11. WHAT IS THE DIFFERENCE BETWEEN CHART A – FINAL ACTION DATES AND CHART B – DATES FOR FILING?

On November 20, 2014, the Department of Homeland Security directed the U.S. Citizenship and Immigration Services (“USCIS”) to work with DOS to improve the Visa Bulletin system. On July 16, 2015, the Obama Administration issued a report Modernizing and Streamlining Our Legal Immigration System for the 21st Century. As a result, USCIS/DOS revised the procedures for determining visa availability for applicants waiting to file for adjustment of status.  This change enhances the ability to more accurately predict overall immigrant visa demand and minimize month-to-month fluctuations.

Chart A – Final Action Dates (FAD) lists the dates when applicants will be eligible to receive their green cards.  Chart B – Dates for Filing (DFF) lists the dates when applicants are eligible to commence their cases with the National Visa Center for immigrant visa processing.

12. WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING “U” (UNAVAILABLE) AND “DD/MMM/YY” (QUOTA BACKLOG)?

Unavailable means that there are no more visas available at all for the month.  If there is a date noted (i.e. 01JAN18), it is considered to be the cut-off date, and that means that there is a “quota backlog.”  Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.

13. WHAT DOES “C” MEAN?

“Current” – this means that there is no quota backlog in this category.

14. WHAT DOES IT MEAN TO BE “CURRENT”?

If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment of status application or immigrant visa application.

15. IF THE VISA BULLETIN SHOWS A DATE OF 01JAN18AND MY PRIORITY DATE IS 01JAN18, IS MY PRIORITY DATE CURRENT?

No.  In order for the priority date to be current, it must be a date prior to the date published in the Visa Bulletin.

16. MY PRIORITY DATE IS CURRENT UNDER CHART B BUT NOT UNDER CHART A. CAN I FILE AN I-485 APPLICATION TO ADJUST STATUS?

It depends.  A few days after DOS publishes the Visa Bulletin each month, USCIS will determine whether applicants must use Chart A – FAD or Chart B – DFF to file an I-485 adjustment of status application.  USCIS publishes this information on its website at https://www.uscis.gov/visabulletininfo.

17. HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?

Each month, the DOS issues the visa bulletin, usually in the middle of the month.  When the bulletin is issued, it will provide information that will take effect on the first day of the following month.  (i.e., on April 8, 2019, the DOS released the dates effective as of May 1, 2019).  Depending on the availability of immigrant visas, the FAD and DFF in each category and for each country can change each month.  However, please note that the FAD and DFF can also stay the same.  They can move very slowly or progress by several months or years.  They can move forward or backward.  Therefore, there is no way to anticipate what the FAD or DFF will be in a future month or when a category will become current.

18. THE FAD IS 5 YEARS EARLIER THAN TODAY. DOES THIS MEAN THAT IT WILL TAKE 5 YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?

No.  It all depends on how many visas are used.  Please see the answer to the above question.

19. CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?

There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a different preference category with a shorter line, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an I-485 application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

20. IF I AM CHINESE OR INDIAN AND WOULD NORMALLY FILE AN EB-1 AS AN ALIEN OF EXTRAORDINARY ABILITY OR AN OUTSTANDING PROFESSOR/RESEARCHER, DO I HAVE ANY ALTERNATIVES?

Yes. An employer, usually a university or private company, may file a petition for you under the Schedule A, Group II category for Aliens of Exceptional Ability. Schedule A occupations are a special “pre-certified” category of occupations which are exempted from the labor certification process. Schedule A, Group 1 includes professional nurses and physical therapists; and Group II includes aliens of exceptional ability in the arts, sciences and performing artists.

21. IF I AM A CHINESE OR INDIAN AND WOULD NORMALLY FILE AN EB-2 PERM SPECIAL HANDLING PETITION OR A NATIONAL INTEREST WAIVER PETITION, DO I HAVE ANY ALTERNATIVES?

Yes, you may also potentially qualify under the Schedule A, Group II Alien of Exceptional Ability category. Schedule A occupations are a special “pre-certified” category of occupations which are exempted from the labor certification process. Schedule A, Group 1 includes professional nurses and physical therapists; and Group II includes aliens of exceptional ability in the arts, sciences and performing artists.

22. I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?

You may use the Priority Date attached to the approved I-140 Petition.  The Priority Date will be printed in the top portion of the Form I-797 Approval Notice.  You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer’s green card process.

23. I HAVE AN APPROVED I-140 PETITION IN THE EB-2 PREFERENCE CATEGORY. CAN I USE THIS PRIORITY DATE FOR A NEW PETITION IN A DIFFERENT PREFERNCE CATEGORY?

You may use a previous I-140 Priority Date interchangeably between EB-1, EB-2, and EB-3.  However, you may not use a previous EB-1, EB-2, or EB-3 Priority Date for a new EB-4 or EB-5 petition.

24. VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OF CITIZENSHIP OR COUNTRY OF BIRTH?

Your country of birth is what determines your country of chargeability.

25. MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY PETITION, DOES MY SPOUSE’S COUNTRY OF BIRTH HELP ME?

Your spouse’s country of birth may also be used to determine chargeability.  For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

26. BOTH MY WIFE AND I WERE BORN IN INDIA AND MY PRIORITY DATE IS NOT CURRENT. OUR CHILD WAS BORN IN THE UNITED KINGDOM AND THE PRIORITY DATE FOR THAT COUNTRY IS CURRENT?  CAN WE USE OUR CHILD’S COUNTRY OF BIRTH FOR ELIGIBILITY?

No.  You can use your spouse’s country of birth for eligibility.  However, your child’s country of birth cannot be used.

27. MY EMPLOYER HAS A LABOR CERTIFICATION PENDING ON MY BEHALF. DO QUOTA BACKLOGS AFFECT THE PROCESSING OF THE APPLICATION?

No.  The labor certification process is not affected by quota backlogs.

28. CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?

No.  The visa category cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed.  Also, since quota backlogs are based on the filing date, it is not in your interest to refile a case and obtain a later priority date.

29. CAN I STILL FILE THE I-140 PETITION OR I-526 PETITION IF THE PRIORITY DATE IS NOT CURRENT?

Yes.  The filing and adjudication of an I-140 is not affected by the quota backlogs.

30. MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT’S APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT.  IS MY DEPENDENT’S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY APPLICATION IS APPROVED?

Yes.  Even through your case was approved, your dependent’s application is still based on your priority date.  USCIS cannot approve the dependent’s application until the priority date is current.

31. THE QUOTA BACKLOGS WERE NOT IN AFFECT WHEN I FILED MY I-485 APPLICATION. DOES A FUTURE BACKLOG AFFECT ME?

Yes.  USCIS can work on the pending application.  However, they cannot approve the application unless the priority date is current and a visa is “available”.

32. THE I-140 AND I-485 WERE CONCURRENTLY FILED AND BOTH ARE PENDING AT USCIS. WILL THE I-140 BE PROCESSED IF THE PRIORITY DATE IS NO LONGER CURRENT AND THE I-485 CANNOT BE APPROVED?

Yes.  USCIS will continue to process the I-140 and it can be approved, regardless of the quota backlog.

33. CAN I FILE AN I-526 PETITION AND I-485 APPLICATION CONCURRENTLY IF THERE IS NO BACKLOG FOR MY COUNTRY OF BIRTH?

No.  You may not file an I-485 application concurrently with an I-526 petition.

34. IF MY I-485 APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT, WILL USCIS STILL ISSUE A FINGERPRINT NOTICE AND/OR RFE?

They may.  USCIS can still process the case but cannot approve it until the priority date is current.  Therefore, you may receive requests for evidence or fingerprint appointments.  It is important to comply with these requests.  Even though the case cannot be approved, it can be denied for failure to provide information or show up for fingerprinting.

35. MY I-485 HAS BEEN PENDING A LONG TIME DUE TO SECURITY AND BACKGROUND CHECKS. ONCE THEY CLEAR, CAN MY CASE BE APPROVED IF MY PRIORITY DATE IS NO LONGER CURRENT?

No.  Even though the only issue may have been the security and background checks, USCIS cannot approve the case until the priority date is current.

36. DOESN’T USCIS ASSIGN ME A VISA NUMBER WHEN THE CASE IS FILED?

No.  Immigrant visa numbers are not assigned to a case until right before approval.

37. CAN I STILL OBTAIN EAD CARDS AND AP DOCUMENTS IF MY I-485 IS PENDING AND I AM NOW SUBJECT TO A QUOTA BACKLOG?

Yes.  As long as you have a pending I-485 application at USCIS, you are eligible to apply for and receive EAD and AP documents.

38. MY I-485 IS PENDING AND I RECENTLY MARRIED. CAN I ADD MY SPOUSE TO THE APPLICATION (I.E. CAN MY SPOUSE FILE THEIR I-485) IF MY PRIORITY DATE IS NOT CURRENT?

No.  In order to add a dependent to the pending application, the priority date must be current.

39. MY FINGERPRINTS HAVE ALREADY BEEN TAKEN. HOWEVER, DUE TO THE QUOTA BACKLOG, THEY MAY EXPIRE.  WILL USCIS REQUIRE ME TO REDO MY FINGERPRINTS ?

Yes.  Fingerprint results expire after 15 months.  USCIS will review the fingerprints at the time that they are ready to complete the adjudication of the I-485.  If the results have expired, they will send out a new fingerprint appointment notice.

40. IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?

The USCIS may ask for updated employment information.  However, new photos and medical exams should not be required.

41. IF THE I-140 PETITION FILED ON MY BEHALF IS STILL PENDING AND MY PRIORITY DATE BECOMES CURRENT, MAY I FILE MY ADJUSTMENT APPLICATION?

Yes, if you have an I-140 Petition pending and your Priority Date becomes current, you and your dependents may file your adjustment applications as long as the Priority Dates remains current.

42. I AM RUNNING OUT OF H-1B TIME. WHAT WILL HAPPEN TO MY H-1B STATUS IF THE QUOTA BACKLOG HOLDS UP MY GREEN CARD APPLICATION?

The AC21 legislation provides for H-1B extensions beyond six years in certain circumstances. If you have a labor certification or an I-140 petition that has been pending for more than 365 days, you may extend your H-1B in one-year increments until a final decision is made. Another provision of AC 21 also provides that if you have an approved I-140 petition and you are unable to file the I-485 due to quota backlogs, you may apply for an extension of H-1B time for a three-year period. Your dependent’s H-4 status may also be extended.

43. IF I AM NOT ABLE TO FILE THE I-485 AND THEN I LOSE MY JOB OR CHANGE JOBS, DOES AC21 PORTABILITY PROTECT ME?

No.  In order to take advantage of AC21 portability, the I-140 Petition must be approved and the I-485 must be filed and pending over 180 days.

44. IF I AM NOT ABLE TO FILE THE I-485 DUE TO QUOTA BACKLOGS, IS THERE ANOTHER WAY FOR MY H-4 SPOUSE TO OBTAIN WORK AUTHORIZATION?

Certain H-4 spouses are eligible for to apply for an EAD if the H-1B nonimmigrant is 1) the principal beneficiary of an approved I-140 petition or 2) has been granted H-1B status beyond the six-year limit pursuant to section 106(a) and (b) of AC21.

45. I HAVE A DERIVATIVE CHILD WHO MAY TURN 21 BEFORE MY PRIORITY DATE BECOMES CURRENT. WILL MY CHILD ALSO OBTAIN A GREEN CARD WHEN I DO?

Your child must be unmarried and under 21 years old at the time a green card is issued in order to qualify for a derivative green card.  If your child turns 21 while the case is backlogged, the child will age out and will be ineligible for a derivative green card.

46. DOES FILING AN I-140 OR I-526 PETITION WHILE MY CHILD IS UNDER 21 ENSURE THAT MY CHILD WILL NOT AGE OUT?

The Child Status Protection Act (“CSPA”) allows a derivative child to subtract the time the immigrant visa petition (I-140 or I-526) was pending from his or her actual age.  The CSPA age is the child’s actual age on the date a visa became available (either the date the petition was approved or the first day of the month when the priority date is current according to Chart A – FAD) minus the time the petition was pending.  However, the CSPA does not provide “age-out” relief for the time after the immigrant visa petition is approved until the date a visa becomes available unless the child’s age was frozen by taking steps at a time when a visa was available.

The child must “seek to acquire” permanent residence within one year of a visa becoming available.  This will lock or freeze the child’s CSPA age if a visa is available at the time these steps are taken and ensures that the child will not age out before the final adjudication of the immigrant visa or adjustment of status.

You can lock in your child’s age by filing an I-485 adjustment application or by paying the fee bill and filing a DS-260 application with DOS.  Until a visa is “available” and the age can be frozen, the child will continue to age and may age out.

47. DUE TO THE QUOTA BACKLOGS, I WANT TO REVIEW MY OPTIONS FOR IMMIGRATING THROUGH A U.S. CITIZEN. I HAVE MINOR US CITIZEN CHILDREN.  I HAVE A US CITIZEN SPOUSE.  CAN THEY SPONSOR ME FOR PERMANENT RESIDENCY?

Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old.  However, if you have a U.S. citizen child who is over 21 or a U.S. citizen spouse, please contact us to discuss your options.

Disclaimer: This does not constitute direct legal advice and is for informational purposes only. FOR PRECISE ADVICE REGARDING YOUR CASE EMAIL US AT VISALAW@WOLFSDORF.COM OR CALL 1-800-VISA-LAW TO SPEAK TO A WR GLOBAL IMMIGRATION LAWYER

By | 2019-05-13T23:18:48+00:00 May 13th, 2019|Bernard Wolfsdorf, EB-1, EB-2, EB-5, Naturalization, Uncategorized, Wolfsdorf Rosenthal|Comments Off on 47 Questions & Answers About Visa Retrogression

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