Visa Retrogression for Employment-Based Third Preference (EB-3)
To be eligible to apply for a green card, either in the United States through
adjustment of status or overseas through consular processing, there must be a
visa number available to you when you apply. Whether a visa number is available
or not depends on the use of visas in your category and country and the rate at
which green card applications are being processed by the government. Your place
in line is determined by your priority date, usually the date your labor
certification was filed with the U.S. Department of Labor ("DOL") or, for those
applications not requiring labor certification, the date a petition was filed
with U.S. Citizenship and Immigration Services ("USCIS"). When more people apply
in a certain category than there are visas available, the U.S. Department of
State ("DOS") establishes a cut-off date, which is the priority date of the
first applicant who could not be issued a visa within the numerical limits. Visa
numbers are available only to those applicants with priority dates before the
cut-off date.
In December 2004, DOS determined that the visa demand for EB-3 category
applicants (skilled and professional workers) from mainland China, India, and
the Philippines exceeded the per-country numerical limits in that category. As a
result, DOS set the cut-off date for EB-3 applicants from China, India,
and the Philippines at January 1, 2002. This roll-back in priority dates is what
is referred to as "visa number retrogression" (or regression). The effect is
that applicants in the EB-3 preference category may not apply for (or receive) their
green cards through adjustment of status at USCIS or through consular processing
at a U.S. consulate abroad unless their priority date is before January 1, 2002.
The number of employment-based immigrant visas available each year is set by
law at a minimum of 140,000. Employment-based immigrant visas are divided into
five categories, called "preferences." The number of visas issued in each
"preference" category is limited by annual and by per-country levels.
If visa numbers in any preference category remain unused in a given year,
applicants in other preference category can use them. If the demand for visas in
a particular category exceeds the allotment
for that category, and there are no extras available from another preference
category, the category is deemed "oversubscribed," and any additional applicants
in that category will have to wait in line.
Immigrant visas are also subject to a per-country limit, set at 7% of the total
annual number of family- and employment-based visas, or 25,620 per country,
divided proportionally among the preference categories. A visa applicant from a
country that has already used up its annual number of visas may still receive a
visa if there are excess employment-based
visas available that are unused by other countries.
In recent years, USCIS (and its predecessor, INS) had slowed down the processing
of green card (I-485) applications, causing a substantial backlog of
employment-based cases. This slow processing resulted in fewer immigrant visa
numbers being used. In turn, this reduced use of immigrant visa numbers created
the impression of visa availability in all employment-based categories. When
USCIS began to address the backlog in 2004 by processing adjustment of status
applications at a faster rate, however, these available immigrant visa numbers
were used up quickly. Because so many visa numbers were quickly used up, there
are fewer available, so the DOS had to set a limit on visa distribution in the
EB-3 category.
Stated another way, the number of people waiting in line for EB-3 visas did not
significantly increase; instead, the number of visas being issued recently
increased and resulted in a shortfall for certain countries.
You are only affected by the current retrogression if you are from mainland
China, India, or the Philippines and wish obtain your green card through
adjustment of status at USCIS (or consular processing at a U.S. consulate) based
on an EB-3 petition. If you fall into this category, you may face a significant
delay (possibly up to several years) before you can apply to adjust status and
obtain your green card. Although you may still file your I-140 petition, you
cannot file your I-485 green card application separately or through concurrent
filing (or complete consular processing overseas) until an immigrant visa number
is available. While you wait, your spouse and you will NOT be able to take
advantage of benefits such as employment authorization and travel documents that
are available when you file your visa petition and adjustment application
concurrently. Although EB-3 is the only category currently affected, the EB-2
category is expected to retrogress for at least China and India some time this
year.
If you filed your I-485 (either alone or concurrently with your I-140) with
USCIS by December 30, 2004, your application will continue to be processed
(security checks, etc.), but it will not be approved upon completion of
processing unless a visa number is available. In the meantime, you and your
family will be allowed to remain in the United States and also remain eligible to apply for employment authorization and advance parole.
If you already have an I-485 green card application pending (i.e., you
happened to have filed before the visa numbers retrogressed), you can continue
living and working in the United States. Also, while your I-485 applications
remain pending, your family will continue to be eligible to file I-765
applications for work authorization and I-131 applications for advance parole,
respectively. There may be other considerations, too, so you should plan
carefully ahead of time and obtain competent legal advice on what you should do
to stay in status and to continue to work and travel freely during the waiting
period.
It depends on the demand for immigrant visas and the combined rate at which
USCIS approves adjustment of status applications in the United States and U.S.
consular officers overseas approve immigrant visa applications. The DOS
continually evaluates the availability of visa numbers issues monthly Visa
Bulletins showing whether the
cut-off date has moved ahead or backward.
If you have an approved labor certification and a pending or approved visa
petition, you may be able to extend or change your nonimmigrant status while
waiting for an immigrant visa number to become available. Some of the
nonimmigrant options include H-1 temporary worker visa, F-1 student visa, O-1
Alien of Extraordinary Ability visa, or L-1 Multinational Executive or Manager,
or possibly other nonimmigrant categories. If you are in H-1B, for example, you
may obtain a one-time extension of status if you have reached the 6-year limit
and your only barrier to adjustment is the per-country limit. You might also be
able to extend your H-1B visa if your labor certification or I-140 petition has
been filed and has been pending for more than one year before you file for the
beyond-6-years extension.
No. USCIS and the U.S. consulates (part of the DOS) draw from the same pool
of visas.
If you have already filed a labor certification or an I-140 petition based on
the EB-3 category, you should also be aware of first-preference (EB-1) and
second-preference (EB-2) categories that do not require a labor certification,
such as Aliens of Extraordinary Ability (EB-1A), Outstanding Professors or
Researchers (EB-1B), Multinational Executives or Managers (EB-1C), and National
Interest Waiver (NIW). Another alternative is the EB-2 category for
Professionals with Advanced Degrees, which does require labor certification, but
allows you to obtain approval in the higher EB-2 preference category. A petition
successfully filed under one of these categories might allow you and your family
to get your green cards potentially several years faster than waiting in the
EB-3 line. Not everyone qualifies for these other categories, though, so a
careful review of your case is important. You can find more information about
our free reviews for these types of cases on our Free Consultations page.
If submitted after December 30, 2004, your application will be rejected if a
visa number is not available. If you file concurrently (both I-140 and I-485)
with one fee, then both applications will be rejected. If you file concurrently
with separate fees, only your I-485 will be rejected.
Maybe. The answer to this question is somewhat complex from a legal
standpoint and the strategy depends very heavily on your specific circumstances.
First, the question of whether to convert at all depends on several assumptions
about contingencies and factors that may vary considerably. Second, there are
several important risks in trying to convert. (The technicalities of the
conversion process are discussed in more detail on our
PERM Labor Certification page.
This is what happens at the USCIS under "normal" circumstances and under
"retrogressed" circumstances:
- Step 1: Obtain labor certification approval from the Department of Labor
(DOL).
- Step 2 (Normal): Use concurrent filing procedures to simultaneously file
the I-140 petition and I-485 application at USCIS.
- Step 2&3 (Retrogression). If there are no immigrant visa numbers
immediately available to your particular preference category and country at
the time your labor certification application is approved, you must split
Step 2 into two parts. First, you file the I-140 petition (because there is
no quota on I-140 petitions), and then you have to wait for a visa number to
become available before filing the I-485 application.
In analyzing whether converting your pending RIR or "standard" labor
certification application to a PERM labor certification application will speed up your overall green
card application process, keep in mind that your "priority date"
(i.e., the date used for determining visa availability) is the date your labor certification application
was filed. Your priority date is not the date the labor
certification was "certified" (i.e., approved). Therefore, whether your labor certification
application moves quickly or slowly, the date you filed
your labor certification (i.e., your "priority date") does not
change. Successfully converting to PERM may
therefore accomplish nothing for you. That is, it would be of little
benefit to have your labor certification approved more quickly if doing so would
only leave you standing on the dock to wait several more years for the immigrant visa ferry
to return.
On the other hand, if you have a very old labor certification pending
(especially one filed before the current visa cut-off date), then the immigrant visa
ferry is already waiting for you at the dock, but your applications are still
stuck in some warehouse somewhere else. In this instance, speeding up the labor
certification process could be of great benefit to you, because
doing so would not only put you on the dock but allow you to get right on to the
immigrant visa ferry waiting there for you, so you could complete your green
card processing either at the USCIS in the United States or at a U.S. consulate
overseas. Also, if your family or you need some of the advantages of having an
I-485 pending, such as eligibility to work or travel in and out of the country
to visit family, attend scientific conferences, and so on, without having to stop
at a consulate overseas for a new visa, a successful PERM conversion and
approval of an old RIR "standard" labor certification application could be of
additional value to you.
Ultimately, whether to attempt a PERM conversion or not clearly requires
careful case-by-case analysis. A successful conversion could possibly move you
forward several years, which could be a huge benefit to you and
your family, but a failed conversion could potentially move you backward
several years (or worse). The bottom line is that you need to understand the
underlying risks before trying to "convert" or allowing someone else to try to
convert your pending RIR or standard labor certification to PERM.
Again, more information can be found on our
PERM Labor Certification page.
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