Your place in the line is set by your priority date.  For occupations requiring labor certification, the priority date is the date the labor certification application is filed either through Reduction in Recruiting (RIR), traditional filing, or through PERM. 

Occupations not requiring labor certification such as RNs, physical therapists, and national interest waivers set a priority date on the day the CIS receives the immigrant visa petition.

The Visa Office of the Department of State controls the allocation of visa numbers.  This is set by statute in the Immigration and Nationality Act.  Numbers are distributed to U.S. consulates world-wide and CIS offices on a monthly basis based on the numbers available that month, the priority dates of the prospective immigrants registered at such offices, and the applicable area ceiling on the number of visas that may be issued to natives of any single foreign state.

Up until January 2005, visa numbers for EB-3s were current.  This meant that if you were in the U.S., you could file for an adjustment of status to that of a lawful permanent resident concurrently with your immigrant visa petition.  Or, if overseas, you could process your immigrant visa at the U.S. consulate once your immigrant visa was approved.  But with the retrogression, consular processing or adjustment of status applications for applicants from the oversubscribed countries are only available for those with priority dates prior to January 2005.

Oversubscription

The numbers became oversubscribed because the CIS is clearing its backlog of EB-3 immigrant visa petitions which increased the demand.  This leaves many wondering what the impact of the retrogression is on their green card applications.

The CIS has instructed its service centers to continue to issue work authorizations for those EB-3 adjustment of status applications received on or before December 31, 2004 if the priority date is later than January 2002.  The service centers will keep the adjustment of status applications on hold until the visa number becomes available (also known as the priority date becoming current). 

This typically impacts nurses and physical therapists whose immigrant visa and adjustment of status applications were filed between January 2002 and December 21, 2004 and are still pending at the CIS. 

Because there are no visa numbers available, the adjustment of status applications cannot be approved. 

They can be kept on hold and the benefits of work authorization and travel authorization can be issued to the applicants while they wait for the green card to be approved.

EB-3 applicants based on labor certifications filed after January 2002 will also have to wait.  Some of these applicants were able to file their immigrant visa petitions and adjustment of status applications prior to December 31, 2004. 

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