Understanding the ebbs and flows of the green card backlog
Your employee’s visa priority date has become current and she has completed her medical exam, background check, fingerprints, and a visa interview. More than a year passes, and she still has not received her green card.
What is the hold up? The most likely reason is visa bulletin retrogression. Because of annual green card quotas and limits on how many visas any one country may use, the State Department regulates how many immigrant visas the government issues each month by publishing “cutoff dates” in the visa bulletin. Applicants only move through the queues if their priority date (filing date of their immigrant petition) falls before the cutoff date for their category. By advancing the cutoff dates, the government opens the door to more filings and allows more immigrant visas to be issued that month. Each employment-based category and nationality has its own queue and cutoff date.
Occasionally, the government needs to dial back the number of visas it is issuing each month to ensure that it does not exceed the annual quotas. The cutoff dates then move backward—a process called “retrogression”—and the government effectively reduces the number of green cards that will be approved that month.
For employees, this means the green card line does not move forward in a consistent manner but will actually lurch forward and backward over the course of several years. Furthermore, an employee whose priority date becomes current may only have a short time to file a green card application because the priority date for his or her category may retrogress the next month.
Sometimes the cutoff dates can retrogress for months. During periods of retrogression, employers may need to extend visas (such as H-1Bs or L-1s), green card-related employment authorization and travel permission documents for employees.
Visa retrogression frequently occurs toward the end of the government fiscal year (which ends on Sept. 30), but then the dates will jump forward beginning Oct. 1 when green card quotas are reset for the new fiscal year.
Visa bulletin movement has practical implications for employee mobility, job portability and business planning. Employers are encouraged to keep pace with changing green card wait times to better prepare for bends in the road—both when retrogression creates lengthy delays, and when rapid advancement requires quick action.
Mark T. Yelich is a Senior Associate in the McLean, Va. office of Berry Appleman & Leiden LLP.
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