What is Visa Retrogression?

Visa retrogression occurs when the U.S. Department of State’s Visa Bulletin shows that a priority date for a particular category of immigrant visa applicants is no longer “current,” meaning that the wait time for a visa has increased. This happens when the number of available visas in a specific category or country exceeds the limits set by U.S. immigration laws.

Key Concepts to Understand Visa Retrogression:

1. Priority Date

The priority date is the date when your visa petition (for employment-based or family-based Green Cards) is filed with USCIS or when the Labor Certification is filed with the Department of Labor (for employment-based categories). This date determines your place in line for a visa.

When your priority date becomes current according to the Visa Bulletin, it means you are eligible to proceed with the final steps of your Green Card process, such as filing for Adjustment of Status (Form I-485) or undergoing consular processing if you are outside the U.S.

2. Visa Bulletin

The Visa Bulletin is a monthly publication issued by the U.S. Department of State that shows which priority dates are currently eligible for visa issuance. The bulletin has two tables:

• Final Action Dates: This indicates when visas can be issued to applicants.
• Dates for Filing: This is the earliest date when applicants can file their final visa paperwork.

The Visa Bulletin divides applicants by preference categories (employment-based and family-based) and chargeability areas (typically based on the applicant’s country of birth). Retrogression often affects applicants from countries with high immigration demand, such as India, China, Mexico, and the Philippines.

3. Annual Visa Caps

U.S. immigration law limits the number of immigrant visas issued each fiscal year. These limits vary by visa category (family-based or employment-based) and country. Each country is subject to a per-country cap, meaning no single country can receive more than 7% of the total immigrant visas issued in a given category in a year.

For example, for employment-based visas, 140,000 visas are available annually across five preference categories. If the number of applicants from certain countries exceeds the available number of visas in a category, the demand backlog causes retrogression.

How Visa Retrogression Happens:

1. High Demand: Visa retrogression occurs when the demand for visas in a particular category or from a specific country exceeds the number of visas available for that fiscal year. For example, countries like India and China tend to have many applicants for employment-based Green Cards, particularly in the EB-2 and EB-3 categories.
2. Per-Country Limits: The U.S. limits the number of visas that can be issued to nationals from each country to prevent immigration from being dominated by a few countries. Once the cap for a particular country or category is reached, applicants from that country must wait until more visas become available in the next fiscal year.
3. Visa Bulletin Update: Each month, the U.S. Department of State reviews the number of visas issued and adjusts the Visa Bulletin accordingly. If more people apply for visas in a particular category or from a specific country than there are available visas, retrogression may occur, meaning applicants may have to wait longer for their priority date to become current.

Example of Visa Retrogression:

Scenario:

Let’s say you are an Indian national applying for a Green Card through the EB-2 (Employment-Based Second Preference) category. Your priority date is March 1, 2023. Initially, when the Visa Bulletin is published in March 2023, the priority date for Indian nationals in the EB-2 category is February 2023, meaning your application is not yet eligible for final processing.

In April, the Visa Bulletin advances, and your priority date (March 2023) becomes current, allowing you to move forward with the next step, such as filing Form I-485 for Adjustment of Status.

However, by July 2023, demand for EB-2 visas for Indian nationals exceeds the annual cap, so the U.S. Department of State retrogresses the final action date back to December 2022. This means your priority date is no longer current, and you will have to wait until it becomes current again in a future Visa Bulletin, even though you were previously eligible.

Impact of Visa Retrogression:

1. Delays in Green Card Processing: Retrogression means that applicants who were once eligible for final processing must now wait until their priority date becomes current again. This can delay the Green Card process by months or even years.
2. Job Offers and Employment: In employment-based Green Card cases, visa retrogression can delay the employee’s ability to secure permanent residency. If they are on a temporary work visa like the H-1B, they might need to renew their work visa multiple times while waiting for their Green Card.
3. Effect on Family Members: For family-based Green Cards, retrogression affects the processing time for sponsoring family members from countries with high demand, leading to extended separation for families.
4. Temporary Status: Applicants waiting for their Green Card can remain in the U.S. on their current visa (H-1B, L-1, etc.), but visa retrogression could delay their ability to gain permanent residency and all the benefits associated with it, such as freedom from visa renewals and the ability to change jobs more easily.

Can Retrogression Be Avoided?

Unfortunately, visa retrogression is often unavoidable for applicants from countries with high demand for U.S. visas, like India, China, Mexico, and the Philippines. However, there are some strategies to mitigate its impact:

• Upgrading from EB-3 to EB-2 or EB-1: Applicants stuck in the EB-3 category may sometimes upgrade to EB-2 or EB-1 if they meet the qualifications, which generally have shorter wait times.
• Changing Country of Chargeability: In rare cases, applicants might be able to change their country of chargeability based on their spouse’s country of birth. This is known as cross-chargeability.

Conclusion:

Visa retrogression occurs when the demand for immigrant visas exceeds the supply, particularly in employment-based and family-based categories. This results in longer waiting times for Green Cards, especially for nationals of countries like India, China, Mexico, and the Philippines. Retrogression can delay the processing of Green Cards by months or even years, and applicants must carefully monitor the Visa Bulletin to track when their priority date becomes current again.