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Understanding Visa Retrogression

Understanding Visa Retrogression
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The Department of State (DOS) puts out a monthly document called the Visa Bulletin. It tells people when they can apply for green cards. The dates in the Visa Bulletin are like deadlines. They are based on how many green cards are available each year and where people are from. There are different categories for getting green cards, like for work or family.

In the Visa Bulletin, there are two lists for each category: one for when you can start applying and another for when you can finish the application. The U.S. Citizenship and Immigration Services (USCIS) looks at these lists to decide when you can send in your green card application. If there are enough green cards, you use the “Dates for Filing Applications” list. If not, you use the “Application Final Action Dates” list. It’s like waiting for your turn.

Usually, the dates in the Visa Bulletin either move ahead or stay the same every month. But sometimes, a date that was okay for applying one month might not be okay the next month. This is called “visa retrogression.” It means you must wait longer to apply for a green card.

Why does visa retrogression happen?

Each month, DOS estimates how many visas will be available in each category. DOS uses different factors to estimate available immigrant visas, including how many applications will likely be approved, how many people have a priority date in more than one category, and how many related family members will receive a green card with the main applicant. Sometimes, the demand for visas is greater than the number of visas that are available. In these cases, the DOS revises its previous estimate and uses an earlier “cut off” date to ensure that more visas are not issued than allowed.

What if my visa category retrogresses?

You will not lose your place in line and your priority date will not change. If you have already attended a visa interview or applied in the United States and your priority date retrogresses, your application will remain in line until your priority date is current again. If you have not yet attended a visa interview or applied for adjustment of status, then you must wait until your priority date becomes current to take one of those steps.

If my green card application is pending and my visa category retrogresses, what can I do?

While your green card application is still being processed by USCIS, you’re allowed to stay in the United States. This is called a “period of authorized stay.” You can also ask for permission to work and travel. You can keep renewing these permissions as many times as you need.

If your I-485 application has been with USCIS for at least 180 days, you can switch to a new job in a similar field.

Your children who applied for green cards with you might still qualify to stay in the U.S. even if they turn 21, thanks to the Child Status Protection Act.

What if my priority date moves ahead in a different visa category? Can I change categories?

Yes, you can ask to switch to a different visa category. For instance, if you have a pending or approved I-140 petition for a different work-related visa category with a current date, you can ask to use that for your green card application instead. You might need to fill out an extra form called I-485 Supplement J.

If you have a family-based case with a current date in a different category, you can also ask to change your green card application to that category by sending a written request to USCIS.

It’s a good idea to talk to an immigration lawyer to see if you can use either of these options.

When will I receive my green card?

It is often hard to predict how fast or slow the dates in the Visa Bulletin will move. You’ll get your green card when your turn comes up in the Visa Bulletin. If you’re still eligible when that happens, your application will be approved. It’s like waiting for your number to be called.

We are closely monitoring the monthly Visa Bulletin and encourage you to contact our office at Tancinco Law at (415)397-0808 or 1 888-930-0808 if you have any questions. You can also schedule an appointment through our website at www.tancinco.com or email us at law@tancinco.com

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Featured Updates

November 2020 Visa Bulletin Still Favorable to Filipino nationals with Approved Workers Petition

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The November 2020 visa bulletin that was released late in October 2020 indicates that the priority dates for employment-based petitions are still current for Philippine nationals. Last month, was the first in many years that the employment-based petitions priority dates become current. For this month of November, those with approved workers petitions filed by their U.S. employers may apply for adjustment of status if eligible or may begin consular processing subject to the visa suspensions imposed by the Trump proclamation.

Among the workers that will benefit are the healthcare workers like the registered nurses and physical therapists. These are Schedule A occupations and their visas are immediately available.

Caregivers or home health aides may also take advantage of this new development if they have already approved petitions or U.S. employers. Those who want to be petitioned by U.S. employers may begin the process of filing by (1) looking for a U.S. employer to petition them and (2) then, their U.S. employer/petitioner will apply for labor certification and petition on behalf of the employee.

For more information on the process, please contact Tancinco Law at 1 888-930 0808 or you may schedule an appointment at tancinco.weareph.com/old.

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Updates

Visas for Spouses & Minor Children of Green Card Holders Available for December 2019

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Normally, one has to be a U.S. citizen to be eligible to file a simultaneous I-130 petition and I-485 application for adjustment of status. Petitions by U.S. citizens on behalf of spouses, parents and minor children are considered as immediate relatives and visas are immediately available. In the last couple of months, the Visa Bulletin under the F2A visa category which covers petitions by green card holders for their minor children and spouses is reflecting a “current” visa availability. Filipinos who are green card holder petitioner’s in certain circumstances may also file simultaneous I-130 petition and I-485 adjustment of status under the F2A visa category.

Claire was petitioned by her mother under the F1B visa category. Her mother is a U.S. citizen who waited for more than 10 years before Claire was able to immigrate to the U.S. under the F1B visa petition. Claire has a minor child, Jason, but was not married to Nico, the father of her child.

When Claire immigrated in 2018 to the United States, she was able to take her minor child Jason with her. But Nico was left behind in Manila. Recently, Nico arrived in the United States on a student visa (F1), he is taking up Masteral Degree related to his career. Claire and Nico recently got married and Claire filed a petition for Nico under the F2A visa category (spouse of a green card holder) on December 1, 2019.

Nico regularly follows and reads the Visa Bulletin issued by the Department of State (DOS) to determine when his visa may become available. He noticed that for the months of F2A, the Final Chart on the Visa Bulletin shows that the F2A has the letter “C” on it. But the Filing Chart shows a 2009 priority date. What does the “C” status on the F2A category mean for Nico? Can Claire now file for his petition and simultaneously adjust his status?

Understanding the Two Charts on the Visa Bulletin

The monthly Department of State Visa Bulletin has two different charts. The DOS will post two charts per visa preference category. The charts are: (1) Application Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply).

According to the recently released November 26, 2019 policy guidance, when USCIS determines there are immigrant visas available for the filing of additional adjustment of status applications, generally, the Dates for Filing Applications chart will be used to determine when to file an adjustment of status application with USCIS. Otherwise, if the priority is current as indicated on the Application Final Action Dates chart, then the final action date chart must be used to determine when to file an adjustment of status application with USCIS.

This means that despite a cut-off date on Filing Chart (second chart), if the Final Action chart (first chart) shows a “C” or a current priority date for a visa category, the application for adjustment of status may be filed immediately for that specific month.

Going back to the case of Nico, who is the beneficiary of an F2A petition, since the Final Action chart indicates a C (or a current priority date), he may now file for an adjustment of status. This is because the C indicates that a visa is available for the month of December 2019. However, unlike immediate relative petitions of U.S. citizens, unless there is 245(i) eligibility, beneficiaries of F2A petitions must be in lawful status to be able to file for adjustment of status.

(Atty. Lourdes Santos Tancinco, Esq. is an immigrant advocate and a principal partner at the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com , facebook.com/tancincolaw, or through this website tancinco.weareph.com/old)

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Updates

Recent changes to the H1B visa program are still favorable

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The U.S. Citizenship and Immigration Services (USCIS) on November 18, 2016 published changes to the H1B program affecting highly skilled workers, and these changes took effect on January 17, 2017. Most of these changes affect those who already have H1B visas and have pending immigrant visa petitions with no available visas.

“Isabela” entered the United States on an H1B visa. She is an engineer who works on different development projects for her U.S. employer. Prior to sixth year H1B expiration, her U.S. employer was able to file a labor certification application and an immigrant visa petition. She has a priority date of 2015 on her immigrant visa petition and a visa is not yet available for Filipino nationals.

The visa bulletin for the month of February 2017 indicates that the visa priority date under the Philippines is 2011 and filing date priority date is 2013. Every year, Isabela’s employer files for a one-year extension of her H1B visa.

She heard about the changes in H1B program that took effect on January 17, 2017. Can she benefit from these changes? If she decides to leave her present employer, will she be able to use the prior approved immigrant visa if this already withdrawn by the employer? What options does she have?

No automatic revocation
In several cases where the employee decides to change employers, the first petitioning employer would take the adverse step of withdrawing the approved petition filed on behalf of an H1B visa holder. And in unfortunate cases, because of the lengthy wait for a priority date to become current, there are times where the petitioner’s business closes for valid reasons resulting in revocation of the immigrant visa petition.

With the recent amendment to the regulations, the USCIS will no longer treat an immigrant visa petition as automatically revoked based on withdrawal by the petitioner or termination of the petitioner’s business. This change applies to those whose petitions have been approved for 180 days or more. Hence, for some employers who may have malevolent plans of getting back at their employees for moving to another employer, there will no longer be an automatic revocation.

The USCIS set conditions for the non-automatic revocation to apply. The rule clearly states that as long as the approval has not been revoked for fraud, material misrepresentation, invalidation or revocation of a labor certification, or material USCIS error, the petition will continue to be valid for various purposes including (1) retention of priority dates; (2) job portability under INA §204(j) and (3) extensions of status under AC21 §§ 104(c) and 106(a) and (b).

Three-year extension after sixth year
Considering that immigrant visas are not readily available because of numerical limitations imposed by law, the H1B employee may request for a three-year extension instead of a the one-year increment. The extension request must show proof that the immigrant visa classification is over- subscribed, which is always the case for employment-based petitions (EB3) for nationals of Philippines. However, if the priority date is at least one-year current, the extension will only be for one year.

Besides the above changes in the highly skilled H1B visa program and the employment- based petitions, there are more changes that would benefit H1B visa holders. For Isabela and those similarly situated, the changes above are significantly critical especially to Filipinos who have to bear a lengthy wait before immigrant visas are made available.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)