The May 2023 Visa Bulletin recently published by the U.S. Department of State, brought some unwelcome news for U.S. employers seeking to sponsor foreign nationals for permanent residency through the employment-based green card/immigrant visa process. Specifically, many of the employment-based immigrant visa categories have had artificial backlogs imposed through “retrogression” of visa availability, due to heightened demand for employment-based immigrant visas.

By way of background, the Visa Bulletin, which is published monthly by the Department of State, provides a snapshot of visa availability in the various family-based and employment-based immigrant visa categories. In each of those categories, and broken down further by the prospective visa applicant’s country of birth, the Visa Bulletin indicates whether visas are “current” (or currently available, i.e. there is no backlog present), or whether a cut-off date has been imposed in order to limit visa issuance to within the annual limits.

The Immigration and Nationality Act sets limits on the number of immigrant visas that may be issued to foreign nationals each year in the various immigrant visa preference categories. If the demand for immigrant visas is greater than the supply of visas for a particular category, the Department of State will set a cut-off date in that category in order to limit the number of individuals eligible to immediately claim an immigrant visa, and thus attempting to keep the allocation of visas within the annual limits. Only individuals with a “priority date” earlier than the cut-off date listed are eligible to apply for/be issued an immigrant visa.

An individual’s “priority date” corresponds to the date on which the first official filing towards the green card process was submitted to the relevant government agency – in the employment-based context, either the PERM Labor Certification application to the Department of Labor, or the I-140 immigrant visa petition to U.S. Citizenship & Immigration Services for those categories/classifications that are exempt from the labor certification requirement. For family-based cases, a priority date is established by the receipt date for the I-130 petition.

In some categories and for some nationalities, retrogression has been the norm. For example, Chinese and Indian nationals have faced retrogression and lengthy backlogs in the employment-based second (EB-2) and employment-based third (EB-3) categories for several years due to the volume of individuals from those countries seeking immigrant visas through employment in the U.S. Traditionally, for most other nationalities (falling in the “rest of world” or “all other chargeability areas” category), retrogression has been less common in the EB-2 and EB-3 categories for positions requiring advanced degrees or most professional-level positions. Beginning with the December 2022 Visa Bulletin, however, the EB-2 category became retrogressed worldwide, with a November 1, 2022, cut-off date imposed. More recently, in the May 2023 Visa Bulletin, the EB-3 category also retrogressed, with a June 1, 2022, cut-off date imposed, and the EB-2 category further retrogressed to a February 15, 2022, cut-off date.

Around the same time, in the April 2023 Visa Bulletin, the EB-4 category significantly retrogressed worldwide due to changes in how this category is constituted, going from a February 1, 2022, cut-off date in March, to a September 1, 2018, cut-off date in April.

Physician, Nurses and Religious Workers Among Those Affected by Visa Delays

Each of these recent retrogressions is bound to significantly impact overall green card processing times for different groups of workers/employees seeking to permanently immigrate to the U.S. based on employment or a job offer in the U.S. For instance:

• The EB-2 retrogression limits the flexibility for individuals whose work is in the national interests of the United States to seek a “National Interest Waiver” and simultaneously submit their Adjustment of Status/green card application along with that petition, creating a delay in between the two steps. Similarly, physicians who have a commitment to work in a medically underserved area and pursue a “Physician National Interest Waiver” on that basis would also have to wait to submit their Adjustment of Status applications, delaying the ability to obtain work authorization for themselves or dependent family members that could come with the Adjustment of Status application being filed.
• In the EB-3 category, the retrogression could lengthen the already-substantial processing timeline for hospitals and healthcare institutions in the United States to bring foreign nurses to the U.S. through the immigrant visa process, and given that temporary/interim work visa options for nurses are limited, the retrogression could add more time before hospitals can have foreign nurses, whom they have recruited from abroad, on-site and able to work.
• In the EB-4 category, which covers many religious workers, the more-than three-year retrogression from March to April could result in many religious workers “maxing out” of lawful status in the U.S. prior to being able to complete the green card process. Many religious workers are able to obtain an R-1 visa to come to the U.S. on a temporary basis for religious work or to pursue a religious occupation/vocation. However, they are limited to a maximum of five years in the U.S. in R-1 visa status. With the current cut-off date for green card/immigrant visa availability at September 1, 2018, it could be very difficult, if not impossible, for any religious workers who have not already filed their Adjustment of Status application prior to the retrogression, to maintain lawful status in the U.S. for the duration of the green card process. This could result in many religious workers being forced to leave the United States at the conclusion of their allowable time in R-1 status.

These retrogressions are not unprecedented, and they likely will continue to occur periodically unless Congress increases the number of immigrant visas available annually. It is therefore imperative that U.S. employers have an understanding of these dynamics and work with experienced immigration counsel to assess the impacts of these delays on their workforce and develop strategies to mitigate the effects of retrogression as much as possible.