2014 was a great year for Filipinos who are beneficiaries of employment-based petitions under the third preference categories. There was a noticeable expeditious movement of the priority dates. However, for the month of May 2015, priority dates under this category went back from October 2014 to July 2007 a severe 7 year retrogression.
Tony entered the United States in 2008 on a professional worker visa or H1B. He is employed as a civil engineer by a U.S. company in Southern California. His employer filed an immigrant visa petition on his behalf under the third preference employment based petition or EB3. This petition has a priority date of 2013.
For the last 7 years, Tony has been on an H1B visa. In January 2015, the priority date of his employment petition became current and on the same month, he also filed an application for adjustment of status with the U.S. Citizenship and Immigration Service. Two weeks ago, Tony received his employment authorization document and his advance parole. He was elated with the positive development until he received an email from his lawyer. Tony was informed that the priority dates for the employment-based petitions of Filipinos would retrogress during the month of May 2015. The priority dates will retrogress back to July 2007. Tony wants to know if his adjustment application that is pending will be denied in view of this retrogression.
What Caused the Retrogression?
The number of visas being issued each year is based on numerical limitation set by law. For the family based petitions, there is a limit of 226,000 while employment petitions are limited to 140,000 each given year. For Filipino nationals there are more petitions approved than the yearly limits resulting in backlogs. Each petition is processed according to its assigned priority date. The Department of State issues a month Visa Bulletin that actually indicates the priority dates that are current.
Charles Oppenheim is the head of the Immigrant Visa Control and Reporting Division that publishes the Visa Bulletin. He is the person responsible of setting the priority dates based on visa availability and demand.
According to Mr. Oppenheim, the demand for visas for Filipinos with employment based petitions were not as many in the past year resulting in faster movement of the priority date from 2007 in April 2014 to 2014 in April 2015. That was a seven year leap within a year. But in the last 6 weeks, he reported that there was a sudden increase in visa demand of Filipinos employment-based employees. This resulted in a severe retrogression back from 2014 to 2007 for the month of May 2015. The increase in demand of visas may probably be caused by thousands of employment-based petitions waiting for their priority dates to be current and are in the United States on nonimmigrant visa. It could also be a result of increase in filings of Schedule A registered nurses from the Philippines.
Those who are in the same situation as Tony may continue to hold on to their employment authorization and their adjustment of status will not be returned to them. It will be kept by the USCIS pending the retrogression until the priority date becomes current. Those who have started with consular processing and have submitted documents with the National Visa Center will not be called for visa interview at the U.S. Embassy in Manila until visas become available again.
(Atty. Lourdes S. Tancinco is a partner at Tancinco Law Offices, a San Francisco based firm and may be reached at 1 888 930 0808, law@tancinco.com, facebook/tancincolaw; or visit her website at tancinco.weareph.com/old)
