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The Department of State visa bulletin for July 2007indicates that visa availability under the EB-2 and EB-3 categories for applicants from all countries are unavailable most probably for the rest of the immigration year. This has lead to huge concern and lot of misinformation among the prospective applicants under EB-2 and EB-3 categories especially from India. The purpose of this article is to explain in simple terms what happened and how much delay we can expect in the future so that aliens can apply for Green Cards in U. S or Immigrant Visas at the US consulates. What is un availability and retrogression? There are only mainly two ways aliens can obtain permanent residence in U. S., one under the family category and the other under employment category. Under the family categories there is always waiting period for applicants to apply for Green Card who is physically present in U. S. or to become eligible to apply for immigrant visa at U. S consulates. Under the EB -3 employment category there use to be about two to three years waiting period for applicants from China, India, and Philippines until most recently. Since those categories became current and visa numbers were available for aliens from the India and other countries until this June 2007, now it is not even available for applicants from any country according to the latest updated visa bulletin.

The only people who do not need to wait for visas are immediate relatives of U. S citizens namely: parents, spouses, and unmarried children under 21 of U. S citizens since they have unlimited number of visas available from any country. For all others both under family category and employment 3^rd category applicants have to wait until their priority date becomes current. When the previously published priority date goes back in the future months it is called retrogression since there is no more visas available for that particular year under the quota allotted to that particular country in a particular category. What is priority date? When the US citizen petitioner or in certain cases the Green Card holder petitioner files immigrant visa petition for the relative or when an employer files a labor condition application with the Department of Labor or with the US citizenship and Immigration Service, they assign a priority date which is usually the date of receipt at the DLO or at the USCIS office.

Why there was no waiting period in certain months and some time it retrogresses? It is because primarily as a result of The American Competitiveness in the Twenty First Century Act (AC-21), and changes in U. S Citizenship and Immigration Services (USCIS) processing procedures that created significant backlog of cases and consequent reduction in demand for visa numbers. When an applicant who is physically present in U. S applies for Green Card the visa number is allotted to that applicant from the per country quota. When an applicant applies for immigrant visa at a U. S consulate then also the visa is allotted from the per country quota. Since the USCIS has significant backlogs since 2001 due to various reason very few number of cases have been approved for Green Card and very few petitions have been approved for consular processing of immigrant visas for those applicants residing outside U. S. Hence there was no demand for the allotted number of visas from the above countries.

But in the year 2006 and 2007 the USCIS took major effort to reduce the backlogs by the end of 2006 when the previous INS under the Justice Department has became the USCIS and part of the new Department of Homeland Security. As a result immigrant visa numbers have been allocated at a faster rate than in comparison to previous years. Section 201(a)(2) of the Immigration and Nationality Act (INA) states that not more than 27 percent of the employment based annual limit may be used in each of the first three quarters of a fiscal year. Based on the rate of demand in the first quarter of 2005, DOS has determined that it is necessary to impose limits on the allocation of immigrant visa numbers to applicants from mainland China, India and Philippines during the second quarter of 2005, due to the high demand for EB-2 and EB-3 category visas from applicants of these countries. It is interesting that applicants from all other countries do not have any waiting period for these categories since their priority dates did not retrogressed.

As a result the USCIS rescinded the memo which allowed concurrent filing of immigrant visa petitions and adjustment of status applications since it has created administrative challenges and has not resulted in enhancement of customer service. So what does this mean to applicants from these countries? They cannot apply for Green Card along with the immigrant visa petitions filed by their employers after approval of Labor Certification. In the cases of Nurses they cannot apply for Green Card when the employer files the immigrant visa petition along with the Labor Condition Application with the USCIS. They have to wait until the priority date reaches which may take at least another two to three years under the present circumstances. This may affect computer professionals and Nurses who are already in U. S on H-1b visas or B-1/B-2 visas or on F-1 visas since they cannot stay in legal status in U. S until their priority date reaches, and they have to leave U. S without accruing unlawful presence of more than 180 days, unless they have filed application before March 28, 2005 as explained below.

State Department has indicated recently that the earliest it foresees movement in the newly-retrogressed employment-based third preference per-country limits would be October 2007. This is more a reflection on the limitations of the process used to count the numbers than an indication of when there in fact might be movement. The priority dates are allotted on the basis of the country of birth and not on the basis of country of citizenship, and parents cannot claim the benefit of the country of birth of their children. But the children may be charged against their parents country of birth to determine the quota eligibility based on the priority date. Only those applicants who are physically present in U. S, who filed their applications on or before December 30, 2004 are eligible to receive work permit and continue to stay in U. S since their applications will be kept in abeyance by USCIS until their priority dates reaches, since retrogression occurred. These are called pipeline cases and they are considered to be pending until the visa number becomes available and the applicants are eligible to receive interim benefits like work permits and advance parole. Their stay in U. S will be considered as authorized by the Attorney General since their application for Green Card is pending.

The new PERM rules published on December 27, 2004 by the Department of Labor with anticipation that LCA will be processed within 40-60 days of receipt by mail or Internet after March 28, 2005 does not offer any benefits for applicants from these countries since the visa numbers are not available since they cannot apply for Green Card or for immigrant visas at U. S consulates immediately after the approval of LCA. Nurses from the above countries even if they pass CGFNS, NC-LEX or state licensing examination they cannot apply for Green Card or immigrant visa at U. S consulates until their priority dates reaches. At present it is expected that there will be a waiting period of two to three years from these countries for those eligible applicants to apply for Green Card or to apply for immigrant visas at U. S consulates, unless priority dates becomes current before that. If per country quota limit is eliminated probably the priority dates may become current for the above countries. The decision to eliminate per country limit has to be made by the State Department which is in charge of the allotment of visa numbers, and may need to amend the Immigration and Nationality Act for which Congress may have to act. This retrogression may cause shortage of Nurses in U. S., unless the Congress acts to reinstate the H-1A visas for Nurses so that the Nurses from the above countries can enter on non immigrant visas in U. S after obtaining visas.