delays caused by “quota retrogression”

Immigrant employees who obtain green cards through their employer’s sponsorship are subject to an annual cap of approximately 140,000 per year. The United States Department of State is responsible for administering this annual cap on immigrant visas. Regardless of whether you adjust your status in the United States or Consular Process through a United States Embassy or Consulate abroad you are subject to this annual cap. Within this annual cap there are limited percentages of immigrant visas allotted per country. Countries with a large number of immigrants are effected by the per-country limits. These countries are China, India, Mexico, and the Philippines.

The State Department estimates how many visas should be given out each month so that the 140,000 visas will last until the end of the year. The State Department issues a Visa Bulletin each month detailing what visas will be available based upon the date of filing of the labor certification application (or the date of filing the I-140 petition if a Labor certification is unnecessary). This date of filing is known as the “priority date”. Applicants are placed into a waiting list based upon their “priority date” and their employment-based preference category. The monthly State Department Visa Bulletin can be found on the web at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1770.html.

In the past, these numerical limitations have not had much effect on the processing time for employment-based immigrant visas. Recently, however, an increase in government efficiency in processing immigrant visa-applications has led to more applications being processed than there are available visa numbers. The U.S. Government ran out of available employer sponsored immigrant visas this past July, and the immigrant visas allocated for the third preference and other worker categories of fiscal year 2005 had been used up by July 2005. As a result, employment-based residence applicants who were interviewed for Green Cards after July 1, 2005 were not issued their green cards if they were in these preference categories. Immigrant visas did not become available for these categories until October 1, 2005, the beginning of the U.S. Government’s new fiscal year. Because the State Department does not want to run out of visas during the fiscal year again, the Department scaled back the number of people eligible for immigrant visas by changing the monthly cut-off dates. This process is known as “retrogression”. Retrogression occurs when the listed priority date is moved back in time rather than forward.

The quota visa numbers are allocated based upon country of birth, not country of citizenship. Under a special provision of law called “cross-chargeability” a married couple may allocate their case according to the quota of either spouse’s country of birth and minor children have a similar opportunity.

The priority dates are inching forward, but for faster relief Congress must act by allocating more employment-based immigrant visas each year.

For Further Information On How We Can Help Your Firm Meet Its Employment Eligibility Verification Obligations, Please Contact Amy Wildes At amy@wildeslaw.com

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