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Visa Retrogression Update: China EB-3, India EB-2 and Worldwide EB-3 Alert

April 28, 2014 | Tags: EB-2 | EB-3

What can employers and employees expect this spring and summer while Congress faces grim prospects for comprehensive immigration reform? Here's a helpful sum up with our analysis from a recent April 21, 2014 meeting between Charlie Oppenheim, number crunching guru from the Department of State's Visa Office, and our American Immigration Lawyers' Association liaisons. As we are all painfully aware, visa retrogression usually increases in the summer as we approach the end of the government's fiscal year on September 30.

Employment Based 2nd Preference India (EB-2):

• We'll start with the good news. Indian nationals with 2008 priority dates should be at the ready this summer to get medicals if their priority dates become current.
• It is possible in August, but more likely in September, India EB-2 will "advance" at 1/1/2008 or perhaps later in 2008, in order to utilize the rest of the EB-2 visa numbers that were unused by the worldwide categories.
• No expected negative changes for worldwide EB-2 (currently no waiting periods).

Employment Based 3rd Preference Worldwide (EB-3):

• Now for the bad news. As a result of USCIS' encouraging Department of State to "move the category forward," demand has increased, and it is likely retrogression will occur this summer, as early as May.

Employment Based 3rd Preference China (EB-3):

• Many Chinese nationals who were waiting in the EB-2 category have been filing to "downgrade" from EB-2 to EB-3, and the window of opportunity may be closing soon.
• Visa retrogression could occur as early as May or June due to high demand. What this means is that, for any cases not adjudicated by the beginning of the month for which visa retrogression occurs, employees will have to wait until a window opens, possibly not until October, for the government to resume processing their cases.

*Updated May 1: Here are some actions that EB-3 Chinese nationals should consider taking immediately:

1. Make an INFOPASS appointment with your local Service office for your and your family's cases. You should be scheduled to meet with an officer in the next few days. Then, find out which date your Adjustment of Status case has been assigned to an adjudicator, if at all yet, and what date your fingerprints cleared, or if fingerprints are pending.
2. Armed with this information, and even if your case has not been assigned to an adjudicator yet, contact your elected representatives and tell your story. The congressional aide may determine your story is worth reaching out to the USCIS directly about, to get it assigned and adjudicated promptly.

Employment Based 1st Preference (EB-1):

• Historically this visa classification has not been subject to visa retrogression. Too early to tell whether EB-1 will take a hit with priority dates, although Mr. Oppenheim noted EB-1 usage is heavier this year than last year.

Employment Based 5th Preference China (EB-5):

• China EB5 could retrogress later this year, possibly August or September.