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Priority Dates and Retrogression
During the last five years applicants for permanent residency did not have to
concern themselves with the issue of priority dates and retrogression. In 2005 this became a concern as the number of “green card” visas allocated
for certain countries were not only used up but a backlog occurred for
individuals born in China and India.
 How does all this work?
At the beginning of the government year on October 1, the Department
of State allocates a number of green card visas with certain numbers set aside
for India, China, Mexico and the Philippines. The rest of the numbers go into a
pool to be used by applicants born in all other countries. The numbers are further
broken down by employment based catagories. For example the EB1 category that is
used for applicants who are filing as outstanding professor/researchers have a
specific number of visas available as does EB2 used for labor certification
for teaching faculty and positions requiring a masters degree. When these
numbers are used up there is no way to borrow from other categories. This was
not a problem when the service centers were severely backlogged and couldn’t
process the number of “green card” applications that were equal to the number of
“green card” visas but over the last year they have improved the processing
time and now use up the visa numbers very quickly.
How do you get a priority date and a place in the “green card” line?
One of two ways, if you are filing your application directly with a service
center via the Outstanding Professor Researcher category then the day your
I-140 application arrives at the service center becomes your priority date.
This date will appear on the receipt issued for the fee that must accompany
the I-140. If you are filing in a category that first requires a labor
certification then the day your application is electronically received by the
Department of Labor becomes your priority date.
How do I check to see if my category is backlogged?
Go to the Department of State Visa Bulletin go
down to the EMPLOYMENT BASED categories at the bottom. Check your filing status
EB1, EB2, etc and then your country of birth. This will show you the date
that the service centers are working on. Once this table shows your priority
date is current and you have an approved I-140 you can file for the final step
in the “green card” process. The numbers can change considerably from month to
month so please check often.
Is there any way to speed up this process?
Not at this time. The US Congress is very much aware of the problems this
backlog is creating for our teaching, scientific and professional applicants
and they are attempting to come up with a way to solve the backlog problem.
What if I am from a backlogged country but my spouse was born in a country that is not backlogged?
This would be WONDERFUL! There is something called cross chargeability. This
allows you to use your spouse’s country of birth as a basis for your green card
visa allocation so if you were born in India or China but your spouse was born
in Canada, one of the countries in the larger pool, you could file immediately
because that category is not backlogged.
What happens if my 6 years in H status expire while I am waiting for my “green card” number to come up?
There are provisions in place to let you work beyond the 6 year limit if your
application has been at the DOL for more that 365 days OR your I-140 was filed
with a service center for 365 days or more. It is critical to file for permanent
residency before the 5th year of H status. This is a way to guarantee that you
are eligible for this extension. Depending on which of these two situations
applies you will either be able to extend your H status on a year by year basis,
or for a three year block. The H advisor will be able to identify which type of
extension you are eligible for and assist you with the filing of your I-129
extension of H status.
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Hiring Internationals 