The forthcoming July 2024 Visa Bulletin is expected to have a retrogression in the employment-based second and third (EB-2 and EB-3) preference categories for worldwide final action dates, including Mexico and the Philippines. It is still unknown exactly how far it will retrogress, but the month of June has become a race to prepare and file adjustment of status green card petitions for applicants with current visa availability. Visa cut-off date retrogressions are a setback in the immigration process for any current or future applicant subject to quotas; however, it could allow for certain immigrant workers to become eligible again to apply for a green card if they missed a window of opportunity in their immigration journey. It is important to understand why this mechanism exists and how it affects foreign workers and applicants in immigrant and nonimmigrant categories.
As part of the Immigration Act of 1990, the U.S. Congress implemented numerical limitations (a.k.a. quotas) on five family-based immigrant categories and all eight of the employment-based immigrant categories. Because applications for these visas can be filed via the offices of United States Citizenship and Immigration Services (USCIS), or U.S. consulates abroad, the Department of State (DOS) is faced with the difficult task of allocating the family- and employment-based visas without exceeding the annual quotas for the government fiscal year (October 1st to September 30th).
To accomplish this, DOS established the monthly visa bulletin, which publishes the immigrant visa/green card cut-off dates. There is an immigrant visa (quota slot) available for those applicants whose “priority dates” are earlier than the cut-off date such that a US consulate outside the US can process the immigrant visa or if in the United States, the applicant can file the last step of the green card process, the I-485 adjustment of status application.
Priority dates are generally established when the first step of a green card process is filed, such as a PERM Labor Certification employment-based case or an I-140 National Interest Waiver case. The visa cut-off dates tend to move faster during the first six months of the fiscal year (October through March) and slower during the last part of the fiscal year. For context, there are only 140,000 available visas for all employment-based categories, out of which the EB-1, EB-2, and EB-3 categories each get 40,040. In addition, each country has a 7% per country cap. Thus, it is important to remember the visa cut-off date is an estimate by DOS and thus, the retrogression of cut-off dates does not project the timing of future movement of cut-off dates. It only reflects an effort by the State Department to set cut-off dates to control the flow of cases to utilize the full quota for the fiscal year.
Applicants with pending adjustment of status applications and no other immigration status will continue to be in a period of authorized stay while the adjustment of status application is pending, even if the visa bulletin retrogresses so the priority date is no longer current. During this waiting period, the applicant may continue to apply for employment authorization and travel documents based on the pending adjustment of status application. Fortunately, these benefits are now being issued with a maximum validity period of five years, as opposed to the previous two-year validity period.
It is important to note that USCIS will not approve an adjustment of status green card application if a visa is not immediately available for the applicant. It does not matter if the case is considered within USCIS processing times. USCIS has in the past conducted adjustment of status interviews during periods of visa cut-off retrogression, but the agency will not complete the adjudication. Normally, the files are sent to the National Benefits Center (NBC) if the application is approvable. NBC then monitors the cases for visa availability and will generally complete the adjudication when a visa becomes available.
Job portability is an option for applicants with pending adjustment of status applications delayed due to a visa cut-off retrogression. Applicants may request to transfer to a qualifying new job offer if (1) the underlying EB-1, EB-2, or EB-3 I-140 petition is approved or approvable, (2) the properly filed adjustment of status application has been pending for 180 days or more and (3) the new job offer (with the same employer or different employer) is in the same or a similar occupation classification as the job offer for which the original petition was filed. Assuming all the requirements are met, this process allows the applicant to move into the new position yet retain the green card process. It is a significant benefit for career flexibility while waiting for visa availability as the new employer need not restart the green card process.
As retrogression has impacted some green card categories causing delays that well exceed the general six year maximum in H-1B status, the American Competitiveness in the 21st Century Act (AC21) was passed to provide relief to H-1B workers allowing them to extend their status while they wait for their priority date to become current and for their green card application to be adjudicated. If an H-1B worker has an approved EB-1, EB-2, or EB-3 petition (I-140) that is subject to visa retrogression, extension of the H-1B can be requested in three-year increments until the time they can apply for adjustment of status. If an H-1B worker has a pending Labor Certification filed at least one year prior to the six years max out date, H-1B extension may be requested in one-year increments.
H-1B workers and their employers should beware, as once a visa becomes available, if the beneficiary fails to file an adjustment of status application or apply for an immigrant visa within one year of an immigrant visa being available, they cannot extend beyond their 6-year maximum. While USCIS can discretionarily excuse the failure to apply, many H-1B workers who transferred to new employers and thus stopped working with the original sponsoring employer have been unable to extend their H-1B status. In these scenarios, the visa cut-off retrogression may provide relief as it will interrupt the one-year filing accrual period for these workers. Thus, any H-1B worker with a priority date that has been current and that has been unable to file for the adjustment of status, should take advantage of this upcoming retrogression, if possible, to file for a three-year H-1B extension and to do so via premium processing. Visa cut-off date retrogressions constitute a normal component of the quota-based immigration system as filings exceed the available green cards. Retrogression should not be viewed simply as further delay, but as an opportunity for job flexibility and further extension of underlying status. It is important to review and analyze with experienced immigration counsel how the retrogression will affect a foreign worker's immigration status, pending petitions and/or applications, and future processes. While we cannot control the movement of priority dates, retrogressions provide short windows of time to prepare and to act accordingly – and not become missed opportunities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.