Explaining Visa Retrogression and How it is Currently Affecting EB-2 National Interest Waiver (NIW) Processing

Employment-based visa processing is comprised of two general phases: (1) the merit-based phase where the petitioning employer (if applicable), foreign national, and proposed employment endeavor is analyzed for qualification based on the statutory criteria for applicable employment-based visa criteria; and (2) the consular processing (outside U.S.)/adjustment of status (inside U.S.) phase where beneficiaries apply for the immigration benefit, i.e. immigrant visa or permanent resident card (“Green Card”).

The U.S. Congress has set limits on the number of immigrant visas (permanent visas) that can be issued each year within each available category. Although employers and foreign nationals are not precluded from initiating “Phase 1”, submission of a merit-based immigrant petition, immigrant visa quotas may affect their ability to proceed to “Phase 2”, which is what ultimately leads to a Green Card.

Following approval of a merit-based immigrant petition, in order for a foreign national to receive a Green Card, an immigrant visa must be available to the applicant both at the time of filing and at the time of adjudication.  The U.S. Department of State publishes a monthly Visa Bulletin which lists the cut-off dates that govern visa availability. Therefore, the monthly Visa Bulletin determines which applicants are eligible to file for consular processing (outside U.S.)/adjustment of status (inside U.S.), as well as which applicants are eligible for a grant of permanent resident status.

An applicant’s ability to proceed to “Phase 2”, consular processing (outside U.S.)/adjustment of status (inside U.S.), is determined by their “priority date”, established based on the date of receipt of the merit-based immigrant petition. If an applicant’s priority date is earlier than the “cut-off date” published in the most current Visa Bulletin the applicant is eligible to apply for permanent residence.

Currently, as of August 2023, the EB-2 category is facing “retrogression”, meaning there as more approved merit-based immigrant petitions at the moment then there are available immigrant visas.

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As such, the EB-2 “cut-off date” as published in the U.S. Department of State’s August 2023 monthly Visa Bulletin is April 01, 2022, for all countries except for China, India, Mexico, and the Philippines, which face longer waits. This means that foreign nationals with approved EB-2 petitions with priority dates prior to April 01, 2022, may proceed to “Phase 2”, consular processing (outside U.S.)/adjustment of status (inside U.S.), resulting in issuance of their much-awaited Green Card.

Nonetheless, foreign nationals interested in EB-2 National Interest Waiver (NIW) petitions, particularly those well positioned to advance Critical and Emerging Technology Areas, are well advised to submit EB-2 National Interest Waiver (NIW) petitions to establish their priority date.

Circumstances permitting, individuals outside the United States may pursue employment authorization in the United States through temporary employment-based visas while awaiting availability of an immigrant visa (permanent visa) based on their EB-2 priority date.

If you believe you fit the description above and seek to immigrate to the United States to continue working in your field, please contact Drummond Advisors for case-specific inquiries. To learn more about the EB-2 NIW visa please click here.

Written by Christopher Costa and Victor Braga

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