On November 1, 2006, the Department of State enacted retrogression for Schedule A nurses and physical therapists. In response to a number of inquiries that HLG has had, we are offering this Retrogression FAQ. Please feel free to distribute it to your employees, friends, and colleagues.

What is Retrogression?
Retrogression refers to the resulting delay in obtaining an immigrant visa when there are more people applying for immigrant visas in a given year than the total number of visas available.

Congress imposed an annual limit to the number of immigrant visas (“green cards”) the USCIS can issue each fiscal year. The total number of immigrant visas available each year is distributed amongst all applicants according to the category of eligibility (such as various family based or employment based categories) and the applicant’s country of birth. This ensures an equitable distribution of the limited number of immigrant visas available each year. When the number of applicants from a particular country is greater than the number of visas available in a particular category, retrogression occurs and a “queue” is established.

What Happens When a Category is Retrogressed?
When there are more people applying for immigrant visas than the total number available, applicants must wait in the “queue” until an immigrant visa becomes available. Until an applicant reaches the front of the queue, an immigrant visa cannot be granted. Practically speaking, this means that the applicant cannot file an Application to Adjust Status (Form I-485) or obtain an immigrant visa by attending an immigrant visa interview at a U.S. Consulate abroad.

How Do I Determine My Place in the Queue?
An applicant’s place in the queue, referred to as their “priority date”, is established by initiating the green card process. For Schedule A petitions, the priority date is the date the Immigrant Petition for Alien Worker (form I-140) was received by the USCIS. The queue is administered by the U.S. Department of State. Each month, the U.S. Department of State issues a “Visa Bulletin” which announces the priority dates eligible for immigrant visas in each category (further divided based upon the applicant’s country of birth).

Are Schedule A Petitions Subject to Retrogression?
Immigrant visa petitions for Schedule A occupations generally fall within the “EB-3” category. This category encompasses petitions filed for “Professionals and Skilled Workers” (positions that require a minimum of a Bachelor’s degree or two years of training) as well “Other Workers” (for positions that require less than two years of experience). For the last few years, there have been more applicants for immigrant visas in the EB-3 category than the total number of visas available. Therefore, this category has been “retrogressed” since 2005. An applicant is this category must have a priority date of April 22, 2001 to July 1, 2002 depending upon their country of birth.

However, legislation passed in 2005 allocated an additional 50,000 immigrant visas specifically for Schedule A petitions and created a new EB-3 subcategory, “EX” for these visas. Unfortunately, this special allocation of 50,000 immigrant visas is nearly exhausted. The November Visa Bulletin announced that the priority date for the EX category is October 1, 2005. Therefore, as of November 1, 2005, an applicant for an immigrant visa based upon a Schedule A petition would have needed to have filed the I-140 petition on or before October 1, 2005 to be immediately eligible for an immigrant visa.

How Does Retrogression Impact Schedule A I-140’s; Can I still File an I-140?
Yes. Retrogression does not impact the employer’s ability to file Schedule A petitions with the USCIS. Employers can continue to file Immigrant Petitions for Alien Workers (Form I-140) with the USCIS, and those petitions can still be approved. The USCIS will also continue to forward approved petitions to the National Visa Center (“NVC”). Similarly, the National Visa Center will continue to process approved Schedule A I-140 petitions by issuing Fee Bills and collecting “Packet III” documents.

However, U.S. Consulates will not assign interview dates and will not be able to issue immigrant visas to Nurses and Physical Therapists until retrogression for Schedule A category (“EX”) is resolved. [Note that in the month of November, an immigrant visa can still be issued for the Beneficiary of an I-140 filed on or before October 1, 2005.

How Does Retrogression Impact Spouses and Children of Registered Nurses and Physical Therapists Who Have Already Entered the United States?
The spouse or child of a Registered Nurse or Physical Therapist who has already been granted the immigrant visa and entered the United States is still subject to retrogression. If the spouse or child has not obtained the immigrant visa before the EX category “retrogresses” they will not be eligible for the visa until their priority date is current in the EB-3 category or until additional immigrant visas are made available for Schedule A petitions.

How Does Retrogression Impact a Registered Nurse or Physical Therapist Who Has Already Been Granted An Immigrant Visa?
Once the visa is issued, retrogression is no longer relevant. A Registered Nurse or Physical Therapist (and their spouse and children) who have obtained an immigrant visa in their passport from the U.S. Consulate will be able to enter the United States (thereby becoming permanent residents or “green card holders”) during the entire validity of the immigrant visa.

How Does Retrogression Impact Nurses and Physical Therapists in the U.S. Who Have Not Yet Filed an Adjustment of Status Application: Can I still file an I-485?
As of November 1, 2005, the ability to “concurrently file” the I-140 and I-485 will be temporarily unavailable. An I-140 petition can still be filed, but the Application to Adjust Status (Form I-485) which provides authorization to remaining the United States and eligibility for employment authorization cannot be filed. [Note that in month of November, an I-485 can still be filed if the Applicant also has an I-140 filed on or before October 1, 2005.]

How Does Retrogression Impact Pending I-485’s?
If an Application to Adjust Status (Form I-485) has already been filed, the USCIS will allow that application to remain pending indefinitely until an immigrant visa becomes available. Additionally, because the application remains pending, the Nurse or Physical Therapist (and family members with pending applications to adjust status) can continue to obtain employment authorization and advance parole.

Can I Benefit from an I-140 Previously Filed By Another Employer?
Yes. If a Nurse or Physical Therapist has a previously approved I-140, he or she can “transfer” that priority date to the current petition.

How Long is Retrogression Expected to Last for Schedule A Petitions?
There are already several legislative efforts underway to provide additional immigrant visas for Schedule A petitions. Relief could be within the next month, or could take several months. However, it is widely accepted that legislative relief will be forthcoming. The United States has declared a national shortage of Registered Nurses and Physical Therapists, the resulting delays in filling these positions caused by retrogression will be taxing for the U.S. healthcare system and a major force for legislative resolution.