Q: What is "Visa Number Retrogression"?

To be eligible to apply for a green card, either in the United States through adjustment of status (AOS/485) or overseas through consular processing (CP), there must be a visa number available to you when you apply. Whether a visa number is available or not depends on the use of visas in your category and country and the rate at which green card applications are being processed by the government. Your place in line is determined by your priority date (usually the date your labor certification was filed).

When more people apply in a certain category than there are visas available, the U.S. Department of State ("DOS") establishes a cut-off date, which is the priority date of the first applicant who could not be issued a visa within the numerical limits. Visa numbers are available only to those applicants with priority dates before the cut-off date.

In a recent example - December 2004, the Dept. of State determined that the visa demand for EB-3 category applicants (skilled and professional workers) from mainland China, India, and the Philippines exceeded the per-country allocated limits in that category. As a result, DOS set the cut-off date for EB-3 applicants from China, India, and the Philippines at January 1, 2002. This roll-back in priority dates is what is referred to as "visa number retrogression" (or regression). The effect is that applicants in such preference category cannot apply for AOS (adjustment of status) or consular processing unless their priority date is before January 1, 2002.

Q: How many employment-based visas are available each year and how are they distributed?

The number of employment-based immigrant visas available each year is set by the Dept. of state at a minimum of 140,000. Employment-based immigrant visas are divided into five categories, called "preferences." The number of visas issued in each "preference" category is limited by annual and by per-country levels.

If visa numbers in any preference category remain unused in a given year, applicants in other preference category can use them. If the demand for visas in a particular category exceeds the allotment for that category, and there are no extras available from another preference category, the category is deemed "oversubscribed," and any additional applicants in that category will have to wait.

Immigrant visas are also subject to a per-country limit, set at 7% of the total annual number of family and employment-based visas, or 25,620 per country, divided proportionally among the preference categories. A visa applicant from a country that has already used up its annual number of visas may still receive a visa if there are excess employment-based visas available that are unused by other countries.

Q: I am from India and had already filed my I-485 application the retrogression. How will my application be handled by USCIS?

If you filed your I-485 (either alone or concurrently with your I-140) with the USCIS by December 30, 2004, your application will continue to be processed (security checks, etc.), but it will not be approved upon completion of processing unless a visa number is available. In the meantime, you and your family will be allowed to remain in the United States and also remain eligible to apply for employment authorization and advance parole.

Q: If I filed my I-485 adjustment of status application before the retrogression, can my family and I still get work authorization and advance parole?

If you already have an I-485 green card application pending (i.e., you happened to have filed before the visa numbers retrogressed), you can continue living and working in the United States. Also, while your I-485 applications remain pending, your family will continue to be eligible to file for EAD (I-765) for work authorization and I-131 applications for advance parole, respectively.

Q: How does the visa number retrogression affect me if I have not yet applied for a green card?

You are only affected by the current retrogression if you are from affected countires like mainland China, India, or the Philippines and wish to obtain your green card through employment in a given category. If you fall into this category, you may face a significant delay up to several years, before you can apply to adjust status and obtain your green card. You may start the Green Card process and still file your I-140 petition, but you cannot file your I-485 green card application until an immigrant visa number is available.