By Michael Phulwani, Esq. and Dev B. Viswanath, Esq.
Congress sets limits on the number of immigrant visas that can be issued each year. If an applicant wants to adjust status to that of a legal permanent resident, there must be an immigrant visa available both at the time of filing and at the time of adjudication. A Visa Bulletin is published monthly by the Department of State which lists the cut off dates that govern how many visas will be available.
Applicants who have a priority date earlier than the cut-off date published in the most current Visa Bulletin are eligible to apply for permanent residence. The cut off date is determined by the number of visas used to that point, projected demand for visas, and the number of visas remaining under the annual numerical limit for that country and/or preference category. The Federal Fiscal Year runs from October 1st to September 30 of each year.
The priority date can either be when the immigrant petition was properly filed with USCIS or in an employment based application when the labor certification application was accepted for processing by the Department of Labor.
A majority of the time the cut off dates on the Visa Bulletins move forward in time, but sometimes they may move backwards in time. Fluctuations from one month to another on the demand for visa numbers can cause cut off dates to either stop, move forward, or move backward. Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month.Sometimes a priority date that meets the cut-off date one month will not meet the cut-off date the next month.
Every October 1st a new fiscal year begins and a new supply of visas are made available. At this time the cut off dates usually return to where they were before retrogression. If your case is being adjudicated and your priority date no longer meets the cut-off date published in the Visa Bulletin, as a result of retrogression, then your case will be postponed until your visa number becomes current again.
When looking at the cut-off dates on the visa bulletin for the month of October 2017 we can see that the cut off dates for family sponsored F1 (Unmarried Sons and Daughters of U.S Citizens) and F4 (Brothers and Sisters of Adult US Citizens) categories have returned back to where it was before they retrogressed back in September 2017. If we look at the family sponsored F4 category, which took a big hit for the cut off dates, for July and August 2017 the cutoff date was May 8, 2004, then in September 2017 it retrogressed to January 1, 2002, and now in October 2017 the cutoff date returned back to May 8, 2004. The F1 family sponsored category was effected similarly in that for July and August 2017 the cutoff date date was December 22, 2010, then in September 2017 it retrogressed to May 1, 2010 and now in October 2017 the cutoff date returned back to December 22, 2010.
Retrogression only took place in family sponsored F1 and F4 categories. In regards to employment based visa petitions there was no retrogression.
If anyone is worried about the Child Status Protection Act (CSPA) and whose applications were current and no longer because of retrogression, you must at least pay the immigrant visa fee and/or file the DS-260 to protect the interests of the children. The visa bulletin needs to be closely monitored over the next few months to see if the cut off dates continue to move forward or if the numbers retrogress again within the new few months.
If you have any questions about the visa bulletin, retrogression or the Child Status Protection Act (CSPA), speak to a qualified US immigration attorney.