Written by Colleen F. Molner, Esq., Partner, N.C. Board Certified Immigration Law Specialist.
The Department of State (DOS) in recent months has stated that there is an increased demand for immigrant visas (green cards) across all employment-based preference categories. In fact, the DOS “ran out” of green cards in almost all of those categories in the last month of the fiscal year.
Historically, those who are waiting for that light at the end of the green card tunnel tend to see relief in October each year as that is when the government’s fiscal year restarts and green card numbers are replenished – in other words, preference categories tend to advance, and more immigrant visas (green cards) become available.
However, the recent increased demand in green cards led to retrogression and longer wait times in the last few months of FY 2024 (October 2023 – September 2024), and that trend appears to be continuing into FY 2025 (October 2024 – September 2025) based off of the recently published October Visa Bulletin.
As a result, employers and employees are fearing (if not already experiencing) lapses in work authorization, additional costs and planning, and other disruptions to their workforce.
Is there a light at the end of this backed-up tunnel? In this white paper, we will explore the recent retrogression trends as well as analyze some potential strategies to mitigate negative impacts for employers, employees and their families.
What is the Visa Bulletin?
First, let’s briefly refresh about the U.S. government’s system in allocating green cards that are sponsored by employers.
Employment-based preference green cards are limited to at least 140,000 per year. The green cards are divided into several sub-categories, each of which receives a certain percentage of the overall green card allocation as prescribed by law. In addition, there are prescribed green card limits linked to country of origin — technically referred to as country of “chargeability,” which is usually the country of birth.
The Visa Bulletin is published monthly on the DOS website and allows foreign nationals to check their place in the green card line. The bulletin establishes priority dates eligible for adjudication.
The demand for green cards is almost universally much greater than the number available by established legislative limits. This results in delays based on priority dates, preference categories and the countries of chargeability.
A green card or immigrant visa is available to an individual when their priority date is earlier than the cut-off date shown for their preference category and country of chargeability in the “Final Action Dates” Chart in the Visa Bulletin.
When the demand for green cards exceeds the supply for a particular preference category and country of chargeability, DOS considers the category and country “oversubscribed” and applies the cut-off date to keep the allocation within the statutory limits. This is what is commonly known as a retrogression.
In addition to the “Final Action Dates” chart, the DOS publishes a “Dates for Filing” chart when there are more immigrant visas available for a fiscal year than there are known applicants for such visas.
The “Dates for Filing” chart represents the earliest dates that green card applicants may apply for a green card, however, a green card cannot be issued until their Priority Date is current under the “Final Action Dates” chart. On average, these dates are usually six to eight months earlier than those in the “Final Action Dates” chart.
U.S. Citizenship and Immigration Services (USCIS) establishes and announces whether applicants — who are applying for their green cards from within the U.S. — can file an adjustment of status (AOS) application using the “Dates for Filing” chart. Historically applications are only accepted under this chart a couple of times a fiscal year.
Although a green card cannot be issued under this chart, it is still beneficial for an AOS application because AOS applicants are also eligible to file for an employment authorization document (EAD) and advance parole travel permit, which are advantageous work and travel documents to have as a backup while waiting for a green card.
The National Visa Center (NVC) also uses the “Dates for Filing” chart to notify immigrant visa beneficiaries, who are processing for their immigrant visa (green card) at a U.S. consulate or embassy abroad, to begin getting documentarily qualified (submitting documents for approval before an interview can be scheduled).
Priority dates
A priority date dictates a prospective immigrant’s place in the green card or immigrant visa line.
The priority date is the day an I-140 immigrant visa petition is filed with United States Citizenship and Immigration Services (USCIS) and/or, for some employment-based categories requiring a labor market test, the day in which a permanent labor certification application (PERM) is submitted to the Department of Labor (DOL).
What is retrogression?
The availability of green cards is based on supply and demand. The Visa Bulletin publishes availability each month, which depends on how many foreign nationals have secured their place in line for a green card, and how many immigrant visas are available each month.
Historically, green cards and immigrant visas are available to individuals in the “All Chargeability” category (applicants born in countries other than China, India, Mexico, Philippines). This is also commonly referred to as “current,” meaning that applicable individuals can apply for their green card at any time and are not subject to a wait to apply for their green card.
However, those categories were no longer “current” in the later stages of FY2023, which ran from October 2022 to September 2023. Instead, cut off priority dates were listed for these classifications which is known as “retrogression,” and this trend unfortunately continued in FY2024 and now into FY2025.
Further, all green cards and immigrant visas in all of the preference categories were issued for FY2024 by September 2024. In other words, no green cards or immigrant visas were able to be issued in September.
This retrogression means that beneficiaries must wait until their priority date is either before, or the same as, the listed cutoff date in the “Final Action Dates” chart to file their AOS application and be eligible to receive their green card.
If applying from abroad, the U.S. embassy or consulate will not schedule the interview appointment until the priority date is either before, or the same as, the listed cutoff date in the “Final Action Dates” chart.
October 2024 Visa Bulletin: First of FY2025
The trend of green card retrogression continued in October 2024, the first Visa Bulletin of the new FY 2025 fiscal year.
That bulletin continued to show retrogression in nearly all preference categories and countries of chargeability.
For instance, foreign nationals born in India are facing more than 12 years of retrogression in some employment-based categories and similarly, there is more than four years of retrogression for those born in China. On the bright side, the EB-3 category did advance nearly two years for Philippine nationals and the EB-1 preference category is still current for all countries of chargeability other than China and India, each of which faces a two to two-and-a-half year wait, respectively.
Practitioners and observers had been hoping the beginning of the new fiscal year would bring positive news about green card availability. Since it didn’t, and as it continues to be a trend, employers and employees should be aware of the potential risks of retrogression and prepare as proactively and practically as possible.
Impacts of retrogression
A retrogression in the Visa Bulletin brings varying risks and impacts to foreign nationals and their employers. This makes it even more crucial for employers to proactively plan and begin the green card process for their employees as early as possible.
Many employers incorporate green card sponsorship timelines into their immigration program and policies. It is not uncommon for employers’ policies to initiate the green card process after one year of employment, and to make exceptions in situations where the employee’s status and/or work authorization is in jeopardy.
As further analyzed below, retrogression has the potential to risk:
- Loss of and gaps in work authorization
- The ability of the foreign national to change jobs
- The principal’s children’s ability to be included as dependents
Loss of work authorization
It is important to time the green card process as proactively as possible, so that employees do not experience — or to minimize — a gap in work authorization. This is particularly true for employees who are working in classifications that do not have indefinite extensions, like the L-1 category, for example.
On the other hand, H-1B employees are only eligible for extensions beyond their six-year maximum if they have reached certain stages of the green card process. The regulations allow H-1B employees to extend their stay if they have timely filed a PERM before the start of their sixth year of status (in one-year increments), or if they have an approved I-140 petition (in three-year increments).
Again, this highlights the importance of proactive planning for employers to consider the preparation and government processing timelines for PERMs and I-140 petitions, in conjunction with the employee’s status and max-out time.
Employees will accordingly face the frustrating lapse of work authorization if their PERM and/or I-140, Immigrant Petition for Alien Worker, is not timely filed. This could mean that they must return to their home country, if no other options are available to adjust to a different nonimmigrant visa category. Employers then face the loss of a valuable employee, and the cost of recruiting and hiring to replace that employee could be immense.
In some circumstances, foreign nationals may explore the option of filing for their green card in a different priority group. For instance, the individual could initially establish their priority date in the EB-2, EB-2 NIW/Schedule A or a PERM based category. They can then “upgrade” to a different EB-1 category, once they have satisfied the criteria, while retaining their initial priority date. This is usually a useful strategy for those in the academic, healthcare, research and/or STEM fields, while there are strategies for “upgrading” or “downgrading” preference categories for other fields.
While there are some drawbacks to changing preference categories, such as additional filing fees, foreign nationals may want to consider this option if it would allow them to more quickly file their adjustment of status (AOS) application, based on the Visa Bulletin’s “Dates for Filing” or “Final Action Dates.”
The submission of the AOS application provides many benefits to the foreign national, including portability (the ability to change jobs within the same organization or with new employers), work authorization, and a travel permit. For the employer, this could also minimize or eliminate the need to further extend the employee’s nonimmigrant status.
Alternative strategies may be more appropriate, for example, if the employee’s priority date is too far away to be able to rely on filing an AOS application any time soon. Some other strategies that may be considered in order to minimize lapses in work authorization include:
- Employers with employees on L-1B (specialized knowledge) visas could promote the employee to a managerial or executive position in order to make the employee eligible for L-1A classification. This would give the foreign national an additional two years of work authorization.
- E-2 (treaty investors) and TN (NAFTA professionals) visas do not have any maximum restrictions on time they can be authorized.
- O-1 visas can also be considered for those with extraordinary ability or achievement, which also does not have a maximum period of stay.
- Employees on H-1B and L-1 status could travel internationally as much as possible to “recapture” time spent abroad and extend their status using that calculated time. This has been an advantageous strategy for employees who are months away from being “current” or otherwise being eligible for extensions, and helps bridge them until they receive their work permit or green card.
Job changes during the green card process
It is not uncommon for an employee to progress in their career during the green card process, especially when factoring in the wait for certain nationalities and preference categories that are most impacted by retrogression.
For example, Indian-born nationals in the EB-2 and EB-3 preference categories have a wait of nearly 12 years in the October Visa Bulletin (yes, this means that if an Indian-born national starts the green card process today, it is forecasted to be a 12-year wait until they are eligible for their green card to be issued).
As the green card application is position- and employer- specific, promotions, lateral changes, and/or more significant changes may result in a change to the indefinite job offer and the employer and employee must evaluate whether the change would require them to restart the green card process and, if so, when is the best time.
It is advisable for employers to take into account multiple factors in these situations, including costs, timing and more when weighing whether to promote or switch a foreign national’s job while they are in the green card process.
More specifically, employers should consider whether a job change for the foreign national will require the filing of a new PERM. Generally, under the “portability” regulations, an employee may not have to restart the PERM process if the new position does not require a material or substantial change to the job duties (more than 50% change) and is in the same occupational classification.
However, if the employer anticipates the employee to be in a new position that is materially different from the PERM-based/I-140 job, it is advisable for the employer to restart the green card process. Re-filing a PERM is both costly and could delay further the receipt of a green card, depending on when the process is restarted. Therefore, employers must weigh whether changing the foreign national’s position is worth the potential extra costs and delays, or if they should postpone the switch. Unfortunately, this may impact a foreign national’s career change or progression.
Another strategy for employers to avoid costs during a job change is to wait to initiate the new PERM process when the employee’s previously attained priority date is closer to being “current.” For instance, if the Visa Bulletin indicates that the employee is more than five years away from being current, it may be advisable for the employer and employee to reevaluate starting a new PERM in two to three years, in case there are additional changes to the job between then and when the employee’s priority date is current.
Children “aging out”
Extended retrogression may also impact children of beneficiaries “aging out” under the Child Status Protection Act (CSPA).
Children are only eligible to apply for a green card with their parent until they are 21 years of age. Generally, the green card does not have to be approved before the child turns 21. Instead, the child’s adjustment of status application (or Fee Bill and DS-260 if applying from abroad) must be filed before the child reaches 21 years of age. Unfortunately, this means that if an individual starts the green card process too late and/or if there is an extended retrogression in the individual’s preference category, their children may reach the age of 21 before their parent’s Priority Date is current in the Visa Bulletin.
For example, if an Indian-born national initiates the green card process while their child is 14, it would theoretically seem that this is sufficient time for the parent and child to secure a green card before the child reaches 21. However, with the current ~12 year wait for a green card for Indian-born nationals in the EB-2 and EB-3 preference categories, it is not likely that the child will be able to apply as a dependent. It is a particularly unfortunate consequence of Visa Bulletin retrogression, especially for families who have been living and raising children in the United States for many years.
Fortunately, children do not necessarily need to be current under the Final Action Dates chart in order to be protected under the CSPA; rather, their age is protected as long as they file their AOS before they are 21 under the Dates for Filing chart. Of course, this chart can only be used if permitted by USCIS which is determined on a month-by-month basis and that is not often.
In situations where a parent’s child is at risk of “aging out,” it is advisable to evaluate whether they are eligible to file a new I-140 under an alternative preference category that has a shorter wait under the Visa Bulletin.
For instance, some of our Firm’s clients have an approved I-140 immigrant visa petition and Priority Date under the EB-2 preference category. But, it is unlikely that their Priority Date will become current before their children are 21 years of age. In these cases, our attorneys discuss various strategies as proactively as possible.
For example, we have had cases where the parent has an EB-2 Priority Date but in the meantime works on their credentials to eventually be eligible for EB-1 classification as an outstanding researcher or individual of extraordinary ability in their field (i.e., writing scholarly articles, judging on panels, securing employment abroad in a managerial position and coming back as an intracompany transferee to work in a managerial position after 1 year, etc.). Retaining the EB-2 Priority Date under the EB-1 category has been a useful strategy that has allowed the child’s age to be locked in sooner, so that they can still file as a dependent.
The attorneys at Garfinkel Immigration Law Firm can assist with exploring any other available strategies for dependent children who could be in jeopardy of “aging out.”
Visa Bulletin retrogression: Tips and information to consider
Because of Visa Bulletin retrogression, employers should:
— Consult with experienced immigration counsel to be proactive about long-term strategy. It is advisable to incorporate green card sponsorship timelines into employers’ immigration programs and policies.
— Initiate the green card process for employees as soon as feasible. Garfinkel Immigration Law Firm usually recommends evaluating green-card sponsorship after an employee has had at least one year of nonimmigrant employment in the U.S., unless there are factors that justify an exception and based on business needs. With current processing backlogs, the wait time for the green card process from start to finish could be about two to four years (or longer depending on country of birth).
— There is usually no formal warning that retrogression will occur in a specific category each month, or by how much. Therefore, employee green cards should be filed as soon as their priority dates become eligible in the Visa Bulletin to avoid the risk of retrogression in the next month.
— Foreign nationals in H-1B or L-1 status could consider traveling abroad frequently and when applicable, in order to “recapture” time available in their visa status.
— Similarly, foreign nationals in H-1B or L-1 status also may have the option to leave the United States and live abroad for a one-year period before returning. This scenario has obvious drawbacks, but does reset the foreign national’s “clock” in terms of the maximum period in which they are authorized to work in the U.S.
— Foreign nationals who are close to maxing out their time in the United States could also explore what employment-based visa options may be available for their dependent spouses. In some cases, it is possible for the dependent spouse to receive their own work authorization, which would potentially allow the maxed out foreign national to switch categories if their spouse was made the primary beneficiary.
The above is not an exhaustive list of alternative strategies when Visa Bulletin retrogression puts employers and their employees at risk. Please contact the attorneys at Garfinkel Immigration Law Firm to discuss individual situations or to learn more about potential strategies.