Background:  By law, there is a quota or limit on the number of people who can be granted permanent residence status (green card) in any given year.  This quota is based on two things: the employment-based category (EB-1, EB-2, or EB-3, etc., or the family based category for family-based cases), and "per country" limits, meaning that every country, no matter how large or small, is given the same percent of the worldwide quota.  As a result, immigrants born in countries like China and India, with large populations, are subject to longer waiting times than a person born in a neighboring country like Pakistan or Nepal.  The number of employment-based visas available to nationals of any given country at any given time will depend on various factors.  These factors include the number of immigrant visas issued at U.S. Consulates abroad, the number of I-485 adjustment of status applications approved for persons from that country in the U.S. during the prior month, etc.  The rate of immigrant visa issuance determines the movement of priority dates.  The movement of priority dates will in turn affect the number of I-485 applications and immigrant visa applications that can be filed during the following month, after the priority dates are released.

If the Visa Bulletin chart states "C" for a given category and country, that indicates immigrant visa availability is “current” in the specific employment-based category, whether EB-1, EB-2, or EB-3, and that there is no waiting period for filing the I-485 application.  If the immigrant visa numbers are backlogged as indicated on the Visa Bulletin, there will be a date (sometimes called a "cut-off date") listed.  If the Priority Date is earlier than the listed date, then the foreign national is eligible to file the I-485 application for adjustment of status, or the consular immigrant visa application, during the particular month when the dates are current.

1. What is retrogression?

Retrogression refers to those times when previously “current” dates on the State Department Visa Bulletin go backwards, rendering immigrant visa processing unavailable to some or all immigrants in a particular immigrant visa category (e.g., EB-3). Retrogression can impact an intending immigrant at different times in the overall process. The immigrant’s priority date must be current at two critical points in time.  First, it must be current on the date the I-485 application for adjustment of status is filed (or the immigrant visa application is processed).  Second, the priority date must also be current on the date when the application is actually adjudicated.  In other words, the immigrant visa cannot be issued (or the adjustment of status application cannot be approved) if the Visa Bulletin is not current for the applicable priority date.

2. What is a priority date?

A priority date in an employment-based (EB) immigrant visa category requiring Labor Certification is the original date that the case was filed with the State employment office under the pre-March 28, 2005 procedures, or with the U.S. Department of Labor under the PERM system in place since March 28, 2005. For petitions that do not require a labor certification, the priority date is the date that the I-140 immigrant visa petition was filed with U.S. Citizenship and Immigration Services (USCIS). To read the Visa Bulletin and determine if your priority date is current, you need to know (1) your priority date; (2) the EB category that you fall under.

3. What is the EB-1 Category?

The employment based categories are divided into five sections. The EB-1 category is for priority workers, and includes the following categories: Extraordinary Ability Alien, Outstanding Researcher/Professor, and Multinational Manager. Each of these categories has specific requirements under the regulations. Please refer to other sections of our web site for more details. None of the EB-1 classifications require that an employer file a labor certification. Furthermore, the Extraordinary Ability Alien category can be self-petitioning.

4. What is the EB-2 category?

The EB-2 category refers to professionals holding advanced degrees (e.g., MS degrees or higher), or who hold a BS degree and at least five years of progressive experience. Generally, this category requires an employer to obtain a labor certification showing that there are no qualified and available U.S. workers for the position. The labor certification must clearly state that the position requires an “advanced degree professional” which is to say it is a position requiring either (1) a Master’s degree or (2) a Bachelor’s degree and 5 years of progressive experience. These requirements must be specifically stated on the labor certification. If they are not stated on the labor certification, then the case cannot be processed as an EB-2, regardless of the employee’s qualifications. Please note that some EB-2 cases may be eligible for a waiver of the labor certification requirement if it can be shown that such a waiver is in the National Interest, or if the individual can show international recognition for exceptional ability. This is a very high standard, and does not apply to the vast majority of cases. Please refer to other sections of our web site, relating to National Interest Waivers or Schedule A Group II, for more information.

5. What is the EB-3 category?

The EB-3 category, similar to the EB-2 category, requires the employer to obtain a labor certification showing that there were no qualified U.S. workers available for the position. The EB-3 category is divided into three categories:  skilled workers, professionals, and other workers. How an individual falls into these categories is dictated by the requirements listed on the employer’s labor certification. If the labor certification states that the requirements are at least a Bachelor’s degree, then the position will be classified as a “professional.” If the requirements indicate that at least 2 years of employment experience and no degree is required, then the position will be designated a “skilled worker. If the requirements are less than two years of experience and no degree is required, it will fall into the “other worker” category. The “professional” and “skilled worker” categories are treated the same under the quota bulletin. The “other worker” category has a different priority date track to follow.

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