UNDERSTANDING PRIORITY DATES, QUOTA BACKLOGS AND RETROGRESSION

Fiscal Year 2006 commenced on October 1, 2005; it will end on September 30, 2006. The Immigration and Nationality Act limits the number of immigrant visas available in all categories for each fiscal year - visas are allocated equally for each country and no one country may exceed the quota.



PRIORITY DATES



The priority date determines the order of visa availability. It is set upon the filing of an immigrant visa petition (for family-based and Schedule A employment-based applications) or a labor certification application (for employment-based immigration other than Schedule A positions).



VISA BULLETIN

Every mid-month, the State Department announces, through the Visa Bulletin, the cut-off dates for all visa categories for the following month. This applies to family-based and employment-based, as well as visa lottery (not applicable to Philippine nationals) applications. When a visa is available, the Visa Bulletin will indicate a letter “C” or a specific date. When visas are not available, the Visa Bulletin will indicate the letter “U”.

The beneficiary will know when a visa is available when his or her priority date is EARLIER than the cut-off date indicated on the Visa Bulletin. If the priority falls right on the cut-off date, the visa is not yet available. Most likely, the visa will become available the following month unless there is no movement (which happens mostly in the 4th preference family-based categories or 3rd preference employment-based “other workers” categories) in the beneficiary’s category.

To view the latest Visa Bulletin, visit the State Department web site at www.state.gov. Click on “subject Index”, click on “V” and click on “Visa Bulletin”. The information is also available in the author’s web site at www.madridcrost.com by clicking “Visa Dates”.



QUOTA BACKLOG

Quota backlogs happen when limits are exceeded in a particular visa category. When visas are available (priority date is current), the application is approved and a visa number is assigned. Once the allocation in a particular visa category for a particular nationality is reached, a waiting list or quota backlog in created. Visas will then become available based on priority dates.

Quota backlog mean months, perhaps years of waiting and families separated. The only category where there is surely no backlog is the “immediate relative” category, which include spouses of U.S. citizens, children below 21 of U.S. citizen parents, and U.S. sons and daughters who are at least 21 of alien parents. For many years, employment-based applicants did not experience backlogs until January 1, 2005. A limited number of employment-based visas became available in July 2005 for Schedule A workers (mostly nurses and physical therapists).



RETROGRESSION

There are situations wherein a later Visa Bulletin will indicate a priority date which is much earlier that the priority date listed on a Visa Bulletin issued many months back.

For example, the Visa Bulletin for December 2004 indicated that all employment based visa categories were current. However, in April 2005, the Visa Bulletin indicated a priority date of April 1, 2002 for the 3rd Preference employment-based category. Worse, in October 2005, the Visa Bulletin indicated a priority date of March 1, 2001. Applications filed prior to the date listed on the Visa Bulletin are eligible to proceed with the green card application.

As a result of retrogression, derivative beneficiaries (spouse and children who could potentially benefit from the principal beneficiary’s approved green card application), who are still outside the U.S., will have to wait much longer. The present wait is, at least, four years or more before derivative beneficiaries could process their immigrant visas to be reunited with the principal beneficiary in the U.S.

The long wait means fingerprints and security clearances needing to be re-done. Obviously, any extra step such as additional fingerprinting could be a source of additional delay. When priority dates retrogress, visa applications (with current priority dates at the time of filing) cannot be approved until the priority date becomes current again.

To make matters worse, dependents (derivative beneficiaries), for example, from a recent marriage, cannot file their green card applications if the priority date is not current. This is true even if the principal beneficiary has a pending green card application that was filed before the retrogression set in. Consequently, the spouse will not be able to work because the application for employment authorization, which is filed with the green card application, cannot be filed as well.

STRATEGIES TO ADDRESS RETROGRESSION

Cross Chargeability of Visas – Natives of certain countries may experience quota backlogs or longer waiting time compared to natives of other countries. By cross chargeability the visa applicant may use the country of birth of his or her spouse (cannot use a child’s country of birth) to speed up visa processing. For example, a Filipino who is married to a native of Germany may charge the visa to Germany if there is no backlog or the waiting period for Germany is shorter.

Consider Other Applicable Categories – Do not forget to look into petitions that were filed long time ago by qualified relatives. As some of you may know, approved visa petitions filed by deceased relatives may be reinstated on humanitarian grounds.

Maintain Current Non-Immigrant Status – It is always a good idea to keep one’s non-immigrant status current until the immigrant visa application is granted. While it is true that one can work legally using an employment authorization document (EAD) issued while a green card application is pending, it is only prudent to keep options available by not being pegged to one option. For example, an unmarried physical therapist with an H1B status may have a pending green card application and an EAD. The physical therapist has the option not to extend the H1B because the EAD has been issued already. However, if the physical therapist later on decides to get married to someone who is not yet in the U.S., it will be less complicated for the spouse to enter the U.S. with an H4 visa.