Priority Date Retrogression and Its Implications

The US Department of State (DOS) recently announced it is going to introduce cut-off dates for status adjustment (I-485) applications that will come into effect on October 1.

These changes are expected to impact employment-based visa applicants from China, India, Philippines, and Mexico in the immediate future. The DOS may also include other foreign nationals if similar conditions arise and, therefore, it is important for non-affected foreign nationals to apply for status adjustment as soon as possible. Currently, there are visa quotas proportionally distributed by country of origin in compliance with the Immigration and National Act (INA). While there are no limits imposed on spouses and children of US nationals, family-based limits are up to 500,000 for non-citizens and 140,000 if the visas requests are employment-based. Special limits apply to certain countries (primarily China, India, Philippines, and Mexico) whose share may not exceed 7% or 25, 620 of the total family and employment-based visas available each year.

As a result of faster processing rates instituted in 2005, available visas for a particular year are likely to run out much more quickly than before, which is exactly why the DOS decided to introduce cut-off dates for each budget year (fiscal year) to limit the number of unprocessed files (backlogs). The new cut-off dates, to be launched on October 1, list landmark dates for the processing of adjustment status or Green Card applications filed by employment visa holders already in the US or those who intend to become Permanent Residents of the United States through employment (processed at a US consular office overseas). These cut-off dates are also known as Visa Number Retrogression. What this means is that the government of the United Stated has set specific backdates for pending employment-based Green Card applications to be processed in during the fiscal year of 2006. The “priority dates” of applications (dates on which the application were filed) determine the order in which visas will be issued. Accordingly, the cut-off date for Chinese nationals in the EB-1 category is January 2000 whereas it is August 2002 for Indian nationals. For Chinese nationals in the EB-2 category, the cut-off date is May 2000, for Indian nationals November 1999. The cut-off date for Chinese nationals in the EB-3 category is May 2000, Indian nationals January 1999, and March 2001 for all others except Mexican citizens.

Those who applied after these dates will have to be patient (often a few years) until immigrant visas become available to them. It is expected that these cut-off dates may retrogress yet again if the demand for visas is higher than expected. However, the cut-off dates do not apply to professionals such as nurses and physical therapists (applicant who fall in the EB-3, Schedule A category) whose cases will continue to be processed. How does October 1 affect your application? I-485 applications filed after this date will instantly be returned to the applicant if an immigrant visa is not immediately available based on the quota assigned to your country of citizenship. When visa quotas are available to your country, it is described as “Current” or “C”, which is your green light to go ahead and file your Permanent Resident application. Until then, you may want to hold off your application and the status of your country will be marked as “U” or “Unavailable” in the Visa Bulletin of the Department of State.