What is Retrogression?
In this blog post, we will discuss the concept of retrogression. Retrogression generally means “the process of returning to an earlier state, typically a worse one”, according to Google. In the context of the green card process, retrogression refers to the backward movement of priority dates, resulting in a longer waiting time for green card applicants. This phenomenon was recently observed in the April 2023 Visa bulletin that affected the EB-2 category, which includes the National Interest Waiver (NIW) subcategory.
The Importance of Priority Dates
Priority dates are crucial in determining an applicant’s eligibility for permanent residence. When the priority date is earlier than the cutoff date in the Visa bulletin, the petitioner may then apply for adjustment of status using form I-485. The United States Congress sets limits on the number of immigrant visas (green cards) that can be issued each year. For employment-based categories, this number is capped at 140,000 every year. The number of visas available are capped based on the category and based on the country of origin of petitioners.
The caps on the five levels of preference for employment-based green cards
28.6% of annual green cards go to first preference green cards, or EB-1, and another 28.6% are assigned to second preference green cards, or EB-2. This category includes National Interest Waiver green cards. EB-3 receives another 28.6%, while the fourth and fifth preference get 7.1% each.
Country quotas for green cards
In addition to the quotas assigned to each preference of employment-based green card categories, there is also an important limitation based on the country of origin of the petitioner. The US system imposes a per-country annual cap of 7% based on the Immigration Act of 1990.
Factors Influencing Retrogression
The Department of State adjusts the cutoff dates in the Visa bulletin monthly, considering several variables:
- The number of visas used to that point
- The projected demand for visas
- The number of visas remaining under the annual limit for that country and preference category
How USCIS Processes Retrogressed Visa Cases
When an applicant’s priority date no longer meets the cutoff date at the time of adjudication, their case is put on hold. USCIS will finalize processing these retrogressed cases when the priority dates become available based on the current monthly Visa bulletin.
Applicants who filed Form I-485 (adjustment of status) before retrogression can apply for employment authorization (EAD card) using form I-765 and permission to travel outside the USA (Application for Travel Document) using form I-131.
A real example of retrogression: March to April, 2023
The visa bulletin for March 2023 showed dates for filing of December 2022 for EB-2. However, in the Visa Bulletin for April 2023, the final action date for EB-2 is July 2022. This means that the dates “went back”, or retrogressed, five months, creating additional waiting times for applicants. See the image below showing the screenshots of the Visa Bulletin. Note that in this example, the applicant has to look at different tables depending on the month. Each Visa Bulletin indicates which table the petitioner should check to determine the correct dates. If you want to learn how to read the visabulletin, check out this blog post.
Unfortunately, there’s not much an applicant can do to speed up their process during retrogression. However, there are a few strategies that applicants can consider when navigating this challenging situation:
- If you have not filed your I-140 and are in a rush to obtain a legal status in the US: Explore other visa or green card options. Some extraordinarily qualified individuals can choose to file an EB-1A petition instead (self petition), or O-1, EB-1B or EB-1C (with sponsor). Other people may choose to transition to student visas
- If you have filed I-140 and you had successfully filed I-485: Request EAD and travel authorization. Applicants who successfully filed their adjustment of status before retrogression can apply for an EAD card and travel authorization.
- If you have not filed I-140: Does Premium Processing makes sense while retrogression is happening? In most cases, premium processing may not be worth the additional cost ($2,500 as of 2023), as it only speeds up the decision on the I-140 petition and not the adjustment of status process.
However, in certain situations, premium processing may be beneficial. This is the case of E-3, H-1, L-1, O-1 visa holders who have lost their job. If they have an I-140 approved they can apply for an employment authorization card (EAD) under the “compelling circumstances” category (c)(35) rule, even if their priority date is not current.
Final Thoughts on retrogression
It is true that retrogression is a frustrating aspect of the green card process, but as an applicant you should not let this discourage you from pursuing your immigration goals. It is vital to apply as soon as possible to secure an earlier priority date and avoid any further delays.
At the same time, it is equally important not to rush the application and ensure a solid, well-prepared petition. Exploring alternative visa options, staying informed, and focusing on factors within one’s control can help manage the challenges associated with retrogression.