Dec 15 2004
EB3 Retrogression - Answers to Some FAQs

What does EB3 retrogression mean anyway and how does it affect my immigration case?

In a nutshell (or at least as succinctly as possible), there are a limited number of employment-based (EB) immigrant visas available each Fiscal Year. And those visas are further distributed by classification (1^st, 2^nd, 3^rd, 4^th, 5^th, Other Workers) and by country of birth. For Indians, Chinese and Filipinos, historically, there has been a higher demand for these employment-based visas than there is supply. For the past few years, that has not been the case to due an abundance of unused employment-based visas that were recaptured for distribution under the American Competitiveness in the 21^st Century Act (AC21). But those have now been used up. So we are back to the bad old days of visa backlogs and cut-off dates. And beginning January 1, 2005, the cut-off dates will go back (retrogress) to January 1, 2002.

Your spot in this employment-based immigrant visa line (or priority date) is generally the date your labor certification application was filed. Once the labor certification application is approved, the next step is the I-140 immigrant petition when you are assigned an employment-based immigrant visa classification with this priority date. If the labor certification application listed the minimum requirements for the position as a Bachelor’s degree or at least 2 years of experience, or some combination of education and/or experience totaling at least 2 years, then your case is under the employment-based second preference classification (EB3). It doesn’t matter what education/experience you have, you must look at what the labor certification application required. If it required at least a Master’s degree (or equivalent - meaning Bachelor’s and 5 years of progressively responsible experience), then your case is under EB2.

Only when your priority date has been reached (gone past the cut-off date) can you file your I-485 application for permanent residence. You can find a summary of the current cut-off dates on our web site under Processing Times, or the complete Visa Bulletin may be found at http://www.travel.state.gov/visa/frvi_bulletincurrent.html.

So, in sum, if you were born in China, India or the Philippines and fall under the EB3 category, you can complete the labor certification step and the immigrant petition step, but there is likely going to be a significant gap until the third and final step of the permanent residence application.

How long is this gap likely to be?

It is really impossible to tell at this point. All we know is that as of January 2005, the cut-off date will go back to January 1, 2002. However, we don’t know how much the dates will move each month. Historically, we have seen movements of a few days at a time to jumps of several months at a time. Once we are a few months into 2005, perhaps we can spot some sort of trend in the progression of the cut-off dates. But the gap is likely to be measured in terms of years, not months.

Are any other categories, such as EB2, going to retrogress?

At this point it doesn’t look like it will happen in the near term.  However, there is a good chance it could happen in the next fiscal year.  The same is true for the Other Workers category.  EB1 rarely backlogs, although it did for a time several years ago for Chinese beneficiaries.

I filed my I-140 and I-485 concurrently already. Am I still affected by this retrogression?

If your case is under EB3, you were born in one of the three backlogged countries, and your priority date is on or before January 1, 2002, then yes, you are affected by the retrogression. Your I-140 remains pending and can be adjudicated whenever the immigration service is ready to work on it. And your I-485 application for permanent residence also remains pending; however it cannot be adjudicated until your priority date is current.

Will the CIS go ahead and work on my I-140 now and then do the I-485 later when my priority date is reached?

The answer is unclear. In the past, CIS has been willing to adjudicate the two separately. But earlier this year, they announced a policy of concurrently adjudicating the I-140 and I-485 applications. However, this was before the retrogression came into play. We’ll have to wait and see, but our guess is that they will take advantage of this to put off having to work on these I-140s until a visa number is available for the I-485. They did the same thing recently with family based immigrant petitions. Never do today what you can put off until tomorrow.

My I-140 and I-485 is pending with CIS, but I am affected by the EB3 retrogression. I want to go abroad, marry and bring my spouse back in H-4 status after January 1, 2005. Will s/he be able to file the I-485 application once s/he is safely in the U.S. in H-4 status? Will s/he be able to get an employment authorization card?

No, s/he cannot file the I-485 until a visa number is available to you. And s/he cannot get an employment card either since that is only given based on having a pending I-485 application for permanent residence.

Moreover you must continue to maintain and extend your H-1B status so that s/he maintains and extends his/her H-4 status. This means that you cannot use your EAD to take up secondary employment; nor can you use the advance parole document for travel. To do so would break your H-1B status, which in turn breaks his/her H-4 status.

My spouse was born in a country other than China, India or the Philippines, does that change things?

Yes. Under the concept of cross-chargeability, you can charge your immigrant visa to the country of his/her birth. Thus, assuming his/her country of birth is not backlogged, a visa number would be available to you currently even though you are the principal beneficiary and s/he is the derivative beneficiary.

My I-485 has been, or will soon be, pending for more than 180 days, and now will be pending for a few more years most likely because I am affected by this EB3 retrogression. But can I still take advantage of the portability provisions of AC21?

The answer here is yes, if your I-140 has already been approved. But it is less clear if your I-140 is still pending.

The relevant portion of AC21 simply states that once your I-485 application has been pending for 180 days, you can change employers without a negative effect on your permanent residence application as long as the new position is in a same or similar occupation.  Implementing regulations have never been issued by CIS.  You also have to remember that when AC21 was written and passed, there was no such thing as concurrent filing of the I-140 and the I-485.  The I-140 had to have been approved first, and only then could you file the I-485.  And since the advent of concurrent filing, the question of whether or not you can still port under AC21 if the I-140 has not yet been approved has not been definitively answered by CIS.  Some in CIS to this point have said yes porting is allowed in such a circumstance; but others have said no.  It is increasingly being hinted at though, that when regulations are issued, the official answer will be no.  Perhaps the regs will require that the new employer file an I-140 petition on your behalf.  We’ll have to wait and see.

So in the meantime, our recommendation is that you not proactively seek to change employers and port under AC21.  But at least it is there if you have to do so defensively, such as in a situation where you lose your job, get laid off, the company closes down, or some other such unexpected occurrence.