Visa Retrogression Means Longer Waits for Employment-Based Permanent Residence Visas

Foreign national employees seeking permanent residence in the U.S. through the employment-based second preference category (EB-2) will be facing a longer wait in light of the Department of State’s recent announcement that the priority date for this visa category had retrogressed to January 1, 2009. This means that for most countries, only those EB-2 applicants who filed a PERM application with the U.S. Department of Labor prior to January 1, 2009, can file their Adjustment of Status applications to obtain a “green card.” Immigrant visas are entirely unavailable for foreign nationals in the EB-2 category from China and India, and they will remain so for at least the rest of the fiscal year.

Congress places an annual quota on the total number of people who can obtain permanent resident status. Because of the high demand for this limited number of immigrant visas, there is a long waiting list. Each applicant seeking an immigrant visa is given a “priority date” based on when the applicant filed their PERM application. When the priority date becomes current, the applicant can then file to adjust status and receive a “green card.” The length of time a foreign national must wait to adjust status depends on both the applicant’s priority date and the applicant’s employment-based preference category. Although the typical priority date will continue to move forward in time, the Department of State may move back a priority date for a particular visa category when the number of applicants for the particular visa exceeds the number of visas available. This is called “visa retrogression.”

Unfortunately for foreign national employees in the EB-2 category, there is not much to do in light of the most recent visa retrogression except to be patient—the limit on visa numbers remains firmly in place. However, an employee working on an H-1B nonimmigrant visa with an approved I-140 can renew his or her H-1B indefinitely, allowing the employee to continue to work until they are qualified for adjustment of status to permanent residence.