Retrogression: What it really means.

Question: I have a Perm Labor Certification that only took 3 months to get. However, now I am being told it will take years to actually get the Green Card. I am being told there is a “Quota Backlog”. What does this mean?

Answer: The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a "Priority Date." The priority date is the single, most important, factor in any immigration case.

Question: What are the EB categories of employment based visas?

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected.

Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor's degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.

Other Workers includes positions that require less than two years of experience.

Question: What is the “Priority Date”?

Answer: If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the State Workforce Agency. If your category is employment-based but does not require a labor certification, then the priority date is established on the date the CIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.

In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin.

Question: Is there anyway I can expedite the process?

Answer: There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

Question: What does it mean to be “current”?

Answer: If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.

Question: my spouse was born in a different country than I as. Since the I-485 is based on my employment, does my spouse’s country of birth help me?

Answer: Your spouse’s country of birth may also be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 2^nd, 3^rd, 5th, 6^th, 8^th, 9^th and 11^th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (888) 861-9111 or (562) 495-0554. The Firm website is www.eimmigration.org.