Understanding the Impact of Retrogressed Priority Dates on EB2 NIW Green Card Applicants
Navigating the complexities of U.S. immigration law can be challenging, particularly when it comes to understanding how retrogressed priority dates impact EB2 National Interest Waiver (NIW) green card applicants. This article will guide you through the process and the potential delays you might face, helping you better understand your situation and plan accordingly.
The EB2 NIW Green Card Process
Applying for a green card under the EB2 National Interest Waiver (NIW) category involves two main steps.
The I-140 Petition: The first step is submitting Form I-140, Immigrant Petition for Alien Workers, to U.S. Citizenship and Immigration Services (USCIS) to determine eligibility for the green card. With the introduction of premium processing, applicants can now receive a decision within 45 days, providing a faster route to this important milestone. For a deeper understanding of the I-140 Process, check out our comprehensive guide.
Applying for the Green Card: Once the I-140 petition is approved, the next step is to apply for the green card itself. This can be done in two ways:
Applying for an Immigrant Visa: This is done at a U.S. consulate abroad.
Adjustment of Status: If the applicant is already in the United States, they can apply for an adjustment of status to become a permanent resident. For those who want to understand the process in detail, our Immigrant Visa Process: A Step-By-Step Guide offers valuable insights.
However, the number of green cards available each year is limited, and this is where priority dates and the issue of retrogression come into play.
What Are Priority Dates?
In the context of U.S. immigration, a priority date is essentially your place in line for a green card. For those applying under the EB2 NIW category, your priority date is established on the date when your Form I-140 is filed with USCIS.
What Does Retrogression Mean?
Retrogression occurs when the demand for green cards in a particular category and country of chargeability exceeds the available supply. When this happens, the priority dates for applicants from those countries are pushed back, meaning that even if your application has been approved, you may have to wait longer before you can receive your green card. This situation is especially relevant to EB-1 Visa Applicants, who might face similar challenges under different categories - although not presently applicable.
The Impact of Retrogression on EB2 NIW Applicants & Adjustment of Status (AoS)
When priority dates retrogress, it means that applicants cannot immediately file for a green card after their I-140 is approved. Instead, they must wait until the priority dates become current again. This delay can significantly impact the timeline for obtaining a green card under the EB2 NIW category. In some cases, this wait can last for years.
Furthermore, when a category is delayed, Form I-485, the Application to Register Permanent Residence or Adjust Status, cannot be filed. This means that applicants are also unable to apply for work authorization (Employment Authorization Document - EAD) and travel authorization (Advance Parole) during this period, adding another layer of complexity and inconvenience. For those wondering about their Immigration Status While Form I-485 Is Pending, understanding these restrictions is crucial.
Moreover, when the Form I-485 adjustment of status application is pending for approved EB2NIW applicants, USCIS can, in its discretion, issue a Request for Additional Evidence (RFE) to provide documentation that the applicant is still engaged in their NIW intended pursuit and field. Changes in employment and activities, since the time of the EB2NIW (I-140) approval and during the AoS process, can add an additional element of complexity to final issuance of the Permanent Resident Card (PRC). Further, USCIS may vet the legitimacy of your endeavor and continued professional activities in the same field of endeavor through public searches of online social media profiles (e.g. LinkedIn). Such RFEs also exists for approved EB-1A applicants with respect to continuity of work in the field of extraordinary ability.
Planning During Retrogression
Given the potential for extended wait times, it’s crucial for EB2 NIW applicants to plan carefully:
Maintaining Valid Status: If you are currently in the United States, it's essential to maintain valid status and work authorization while waiting for your priority date to become current. Failing to do so could complicate your ability to remain in the U.S. legally. Our National Interest Waiver FAQ offers additional guidance for navigating these challenges.
Exploring Other Visa Options: Depending on your circumstances, it may be worth exploring other visa options that might better align with your long-term goals. For example, the O-1 Visa might be an option for those with extraordinary ability. Consulting with an experienced immigration attorney can help identify the best strategy for your unique situation.
Stay Informed: Regularly check the Visa Bulletin to stay updated on the movement of priority dates. This will allow you to anticipate changes and make informed decisions about your case.
The Current State of EB2 NIW Categories
At the time of writing this article, all EB2 National Interest Waiver categories are not current for any country. The waits are particularly extensive for applicants from India and China, with about a year-long wait for applicants from other countries. This underscores the importance of staying informed and proactive in managing your immigration journey.
Conclusion
Retrogressed priority dates add a significant layer of complexity to the EB2 NIW green card process. The delays and uncertainties they introduce can be challenging, but with careful planning and expert guidance, you can navigate these obstacles effectively.
If you are an EB2 NIW applicant affected by retrogression, exploring your options with an experienced immigration attorney can help you develop a strategy that aligns with your professional and personal goals. To discuss your situation and explore the best path forward, schedule an evaluation with our attorney.