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⇒ Student & Scholar Advising ⇒ Faculty, Staff, & Visitors ⇒ Permanent Residence ⇒ Retrogression of Visa Numbers permanent resident visa numbers

Retrogression of Visa Numbers permanent resident visa numbers

Eligibility for Legal Permanent Residence (LPR)

The process of obtaining LPR involves several steps.  The institution or the individual must first establish the applicant’s eligibility to apply for permanent residence based on employment.  Eligibility is obtained by one of several routes: a petition (Form I-140) is filed with the US Citizenship and Immigration Service (USCIS), establishing that the applicant is an Outstanding Professor or Researcher, an Alien of Extraordinary Ability, or that it is in the national interest (National Interest Waiver) to hire a foreign national; or an application is filed with the Department of Labor for Alien Labor Certification, in which the employer undertakes competitive recruitment which does not uncover a US national applicant, and then files Form I-140 with USCIS.  Extensive regulation and documentation surrounds each of these approaches.

The actual LPR application is a separate step and requires a separate set of forms to be filed with USCIS.  The basic form is the I-485.  Applicants cannot file Form I-485 and apply for LPR unless an I-140 has been filed and an immigrant visa number is available.

Employment-Based Permanent Residence Preferences and Per-Country Limits

There are five employment-based preference categories available.  Indiana University typically sponsors individuals in the first three classifications, with the bulk of our filings being in the first two.

The US government can only approve a certain number of employment-based permanent residency applications per year, and, to keep the immigrant pool diverse, Congress has set a limit on the number of immigrants that can be approved per country per year.  The same number of immigrants are allowed per country, regardless of the population of that country, although numbers not used by other countries are passed on to high-demand or high-population countries.  As demand for the green cards exceeds the supply, backlogs occur.  A person’s “chargeability” for LPR processing is determined by the country where s/he was born or where his or her spouse was born, not by citizenship.

The Priority Date and its Significance

In situations where there is a backlog, LPR applications (I-485) cannot be filed unless the person’s “priority date“ or place in line is current.  A person’s place in line is determined by the date his/her process was first initiated with the US government either through the filing of a Labor Certification or the filing of an I-140 when Labor Certification is not required.  This initiation date is known as the “priority date.”  Although the preliminary, qualifying paperwork (Labor Certification and/or the Form I-140) can be processed without concern about whether the priority date is current, an individual cannot file the final paperwork needed to actually get permanent residency status (I-485) until his/her priority date is “current” as shown in the Visa Bulletin.

The table below is excerpted and modified for clarity from the October 2005 Visa Bulletin to illustrate how the priority dates work in the example below.

Example: Coworkers Feiquan (born in China) and Markus (German) qualify for the 2nd preference.  They have the same priority date, May 1, 2003, when their employer filed Labor Certifications, and all have approved Labor Certifications and I-140s.  Markus can immediately file for adjustment of status because his chargeability is current.  Feiquan must wait, because for China the government is currently processing those applications that were started on prior to May 1, 2000 and his priority date is May 1, 2003.

Note that backlogs are expected for other nationalities as well, perhaps as soon as the coming year.

The State Department’s Visa Bulletin is published monthly with an updated list of priority dates [Click here to get the dates].  It is virtually impossible to predict how quickly priority dates will move.  They have been known to go backwards and they have been known to jump forward quickly.  It is important to monitor them each month.  Regressing priority dates also have an effect on I-485 applications for LPR that have already been filed.  If an I-485 is filed and is pending when the priority date regresses, the government simply puts it on hold and will not resume working on it until the priority date for that application once again becomes current.  However, people whose I-485s have been accepted by USCIS can continue to apply for employment authorization and advance parole (travel permission).

Waiting for the Priority Date to Become Current

Individuals must maintain legal nonimmigrant status and work permission while they wait for their priority dates to become current.  Labor Certification and an approved Immigrant Visa Petition (I-140) only establish the employee’s eligibility for the green card classification requested.  They do nothing to extend legal status or give work permission.

Although normally people can only hold H-1B status for a total of 6 years, if the LPR process (Labor Certification or I-140 filed) was started at least one year before the end of the sixth year in H status, the H-1B and any H-4 dependents qualify for extensions as long as necessary.  However, a spouse with his or her own H-1B status will not be able to extend beyond the 6-year maximum, unless the spouse is also being sponsored for permanent residency.  Individuals who do not qualify for the H extensions must maintain their legal status and their ability to work in some other way and will need to work closely with the International Services office.

Strategies for Handling Backlogged Priority Dates

The timely, strategic planning and management of an employee’s immigration status is of utmost importance now that the priority dates are once more an issue.  This requires ongoing communication and coordination among the department, the employee and the Office of International Services.