The Department of State (DOS) has just announced that, effective October 1, 2005, retrogression will apply to a wide-range of immigrant visa classifications. Retrogression is caused when there is full subscription of the employment-based immigrant visa rolls. When full subscription is reached, US law compels the Citizenship and Immigration Service (USCIS) and the Department of State (DOS) to establish visa quotas, which create waiting list queues. These queues can delay immigrant visa (a.k.a. Permanent Residency or Green Card) cases by several years. This phenomenon is known as retrogression. Traditionally, Chinese, Mexican, Filipino and Indian workers have been the hardest hit.

A foreign national's case is prioritized by three different factors: (i) his initial filing date of either a Labor Certification or Petition for Immigrant Visa (I-140), whichever comes earlier (this is the "priority date"); (ii) his country of birth (not nationality); and (iii) his employment based classification (see end of this article, which describes the categories- EB1, EB2, etc.).

The allocations are announced in the monthly Visa Bulletin. The Visa Bulletin is ordinarily released about two weeks prior to its effective date, which always falls on the first of the subsequent month. In other words, a Visa Bulletin released in mid-September 2005, is effective October 1, 2005. The Visa Bulletin lists cut-off dates for each classification. Applicants who hold priority dates before a cut-off date are unaffected by retrogression. Applicants with priority dates after the cut-off date will have their cases held in abeyance until their classification's cut-off date is after their priority date.

For consular processing immigrants, retrogression means that the Consulate is not allowed to issue a visa to any applicant unless that applicant's priority date is "current," or the applicant holds a priority date before the listed cut-off date.

For Adjustment of Status applicants, retrogression means that applicants are not allowed to file I-485, Adjustment of Status Applications unless that applicant's priority date is "current," or the applicant holds a priority date before the listed cut-off date. If an applicant has a pending I-485 Adjust of Status Application, the USCIS will not approve that Application until the applicant's priority date is "current," or the applicant holds a priority date before the listed cut-off date.

This month's Visa Bulletin: (note- "C" = current)
 

	All Countries Except Those Listed	China	India	Mexico	Philippines
Employment-Based
1st	C	01JAN00	01AUG02	C	C
2nd	C	01MAY00	01NOV99	C	C
3rd	01MAR01	01MAY00	01JAN98	01JAN01	01MAR01
Schedule A Workers	C	C	C	C	C
Other Workers	01OCT00	01OCT00	01OCT00	01OCT00	01OCT00
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th	C	C	C	C	C
Targeted Employment Areas/Regional Centers	C	C	C	C	C

CATEGORIES

Employment First Preference (EB1)

Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with BCIS. Within this preference there are three sub-groups:

Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the BCIS, rather than through an employer;

Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the BCIS; and

Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the BCIS.

Employment Second Preference (EB2)

Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas. All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program (later). A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:

Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and

Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

Employment Third Preference (EB3)

Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. There are three subgroups within this category:

Skilled workers are persons capable of performing a job requiring at least two years'' training or experience;

Professionals with a baccalaureate degree are members of a profession with at least a university bachelor's degree; and

Other workers are those persons capable of filling positions requiring less than two years'' training or experience.

Schedule A Workers

Registered Nurses and Physical Therapists are Schedule A occupations and are exempted from the usual Labor Certification process. Legislation signed by the President in May 2005, allowed for a carve-out of 50,000 immigrant visas for Schedule A workers.

Employment Fourth Preference (EB4)

Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. There are six subgroups:

1) Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination;

2) Certain overseas employees of the U.S. Government;

3) Former employees of the Panama Canal Company;

4) Retired employees of international organizations;

5) Certain dependents of international organization employees; and

6) Certain members of the U.S. Armed Forces.

Employment Fifth Preference (EB5)

Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur, with the BCIS. To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.